Yale Law School
Yale Law School Legal Scholarship Repository
Faculty Scholarship Series
Yale Law School Faculty Scholarship
1-1-1965
Book Review: Law, Liberty and Psychiatry
Joseph Bishop
Yale Law School
Follow this and additional works at: http://digitalcommons.law.yale.edu/fss_papers
Part of the Law Commons
Recommended Citation
Bishop, Joseph, "Book Review: Law, Liberty and Psychiatry" (1965). Faculty Scholarship Series. Paper 2845.
http://digitalcommons.law.yale.edu/fss_papers/2845
This Article is brought to you for free and open access by the Yale Law School Faculty Scholarship at Yale Law School Legal Scholarship Repository. It
has been accepted for inclusion in Faculty Scholarship Series by an authorized administrator of Yale Law School Legal Scholarship Repository. For
more information, please contact [email protected].
fSIO
ISIO
LAW REVIEW
HARVARD
REVIEW
HARVARD LAW
[Vol. 78
[Vol.
78
have
have found in the majority opinion
opinion a basis for hope for a more receptive
response
response to his proposals. One cannot but admire what Mr. Falk
undertaken to do. In an area
has undertaken
area of the law
law where new thoughts and
new tools are sorely needed, one finds in Falk's offering the type of
creativity that is too often absent in times of crisis. Those interested in
a well-written and succinctly
succinctly stated analysis of the current state of international law in the area of private
private property
property rights and expropriation
expropriation
by foreign governments,
governments, and a theory
theory upon which a new body of legal
rules can be predicated,
predicated, would do well to read The Role of
of Domestic
Domestic
Courts
International Legal Order.
Order. For the oldtimers in the field
Courts in the International
of international
newcomer to the study of probinternational law, as well as for the newcomer
lems inherent in any attempt
attempt to change
change long established standards,
standards, readIt
certain to be a very rewarding experience. It
ing Mr. Falk's book is certain
should not be delayed.
delayed.
EDWIN W. TUCKER
TucKER *>I<
By Thomas S. Szasz, M.D.l
M.D.1 New
Macmillan Company. 1963.
1963. Pp. xii, 281.
281. $7.50.
$7.50.
York: The Macmillan
Insanity
Insanity has long been generally recognized
recognized as a form of disease,
in principle no different
different from measles or arthritis. But if the erstwhile
lunatic
"sick," yet his sickness remains a peculiar
peculiar
lunatic is now considered "sick,"
it
variety of disease; consciously or unconsciously, most people regard it
It is a clich6
as embarrassing or even disgraceful.
disgraceful. It
cliche of humor that the
average man will readily regale his friends with an account of the adventures of his colon, liver or vermiform appendix, but it is a highly exceptional
ceptional man who will favor them with an account of his last bout with
paranoia.22 The stigma that attaches to the disease is shown by the prolexicon: we have
gressive euphemism which is so marked a feature of its lexicon:
"madness" to "insanity"
"insanity" to "mental
"mental illness"
illness" to "nervous
"nervous
gone from "madness"
disorder"; from "raving"
"violent" to "disturbed."
"raving" to "violent"
"disturbed." Offhand, I can
think of but one other instance
instance in medicine in which there has been a
concerted effort to soften the harsh name
concerted
name of a dreaded
dreaded malady: that is
"Hansen's Disease."
Disease."
the attempt to rechristen
rechristen leprosy as "Hansen's
A number of explanations suggest themselves.
themselves. Perhaps there lingers
some remnant
remnant of the theory, at one time universally
universally held, that the lunaor
peculiarly disagreeable and tenacious devil or
tic is possessed by a peculiarly
crowd of deviIs;3
devils; 3 one is dealing not with afflicted fellow men, but with
LAW,
AND PSYCHIATRY.
PSYCHIATRY.
LAW, LIBERTY
LIBERTY AND
can waive the provisions
provisions of the statute. A specific procedure for settling claims
arising from
from Cuban
established by 78 Stat. IlIO
imzo (x964).
(1964).
arising
Cuban expropriation is
is established
Assistant Professor
Professor of
of Business
Law, University
** Assistant
Business Law,
University of
of Connecticut.
Connecticut.
'Professor of Psychiatry, State University of New York, Syracuse:
Professor
of monologues,
Psychiatry, State
of New York, Syracuse:
clinical
whichUniversity
in less sophisticated
tend to
The clinical monologues, which in
less sophisticated strata
strata of
of society
society tend
to
focus
on
the
speaker's
tripes,
are
in
more
focus on the speaker's tripes, are in more polished circles
circles likely to revolve around
his
relations
with
his
psychoanalyst.
But
it
is
notorious
of
his relations with his psychoanalyst. But it is notorious that such amateurs of
psychoanalysis do not usually suffer
suffer from any mental defect more serious than
than
psychoanalysis
silliness;
rarely does their malady
malady rise above the level of neurosis.
3
Mark 5:1-16;
5:1-16; Luke
The diabolic
diabolic con3 See,
See, e.g.,
e.g., Matthew
Matthew 8:28-33;
8:28-33; Mark
Luke 8:26-36.
8:26-36. The
contents of
of aa single
man-or
Matthew-- was enough to
two men, according to
to Saint Matthew
tents
single man
- or two
induce
by pronounced
pronounced disturbance, in a large herd of
of
induce psychosis,
psychosis, accompanied
accompanied by
1
2The
2
HeinOnline -- 78 Harv. L. Rev. 1510 1964-1965
19 65]
BOOK REVIEWS
REVIEWS
lSI!
1511
It may be more than coincidence
the legions of Hell. It
coincidence that the etiology,
dominated
diagnosis, and treatment of leprosy were for long similarly dominated
by theological considerations.
considerations. A more significant parallel between
between the
two diseases is that in each
of
each case diagnosis
diagnosis commonly
commonly leads
leads to loss of
freedom and probably to confinement
confinement in an institution that might as
well be called a prison as a hospital or sanitarium. In the case of insanity, the symptoms that land the sufferer
sufferer in the asylum are very
very
often
often superficially
superficially identical with those that land other people in penitentiaries. Indeed, it is only in comparatively
comparatively recent times that there has
been an effort to draw
criminality and insanity. Dr.
draw a clear line between criminality
Szasz develops at length the proposition
proposition that this line is still very far
from clear and that it may in fact be in the process
process of becoming more
blurred and meaningless than it was a hundred years ago.
branch of
As insanity is a peculiar malady, so is psychiatry a peculiar branch.
of
medicine. For one thing, it remains
remains among the most backward of the
healing arts. If the prospect of cure in cases of insanity is somewhat
somewhat
better than that for the common cold or acne, it is certainly no .better
better
than for cancer. Only in very recent
recent years, with the advent of various
various
drug therapies, has there been a significant advance. The literature of
of
the subject
subject tends to be full of gaseous theory and strange, astounding
jargon, more suitable to theological works than to books dealing with
medicine or any other science. This is not surprising, for it is plain that
that
psychoanalysis - satisfies
the needs that psychiatry - and in particular psychoanalysis
are in very large part those that used to be satisfied by religion. Its cateeducated and solvent sects,
chumens tend to be drawn from the more educated
such as Episcopalians and Jews,
Jews, who can no longer swallow
swallow the myths
ancestral faiths, but who still find intolerably
bleak
and dogmas of their ancestral
intolerably bleak
a life in which there is neither juju nor the delightful tremors, compounded
pounded half of fear and half of ecstasy, conveyed
conveyed by the ministrations
ministrations
of witch
witch doctors. Psychoanalysis,
Psychoanalysis, describing
describing itself as a science, a branch
branch
of medicine,
heavily in charms and liturgy, meets their need
medicine, but trading heavily
a great deal better than the colorless rites of other
decompression chamother decompression
bers for ex-believers, such as Unitarianism
Unitarianism and Universalism. I confess
some surprise at the failure of Bahaism, Rosicrucianism,
Rosicrucianism, Yoga, and
similar exotics,4
exotics, 4 which certainly
certainly cannot be accused of drabness, to pick
pick
up greater shares of the market. It
It is probable
probable that the flamboyance
flamboyance of
both their doctrines and their disciples has tended to repel people who
believe that they believe in the scientific
scientific method.
It follows that psychiatrists, though they are by definition doctors of
It
of
specimens of that breed.
medicine, are frequently highly idiosyncratic
idiosyncratic specimens
Many or most of them are no doubt as hardworking, useful and inconspicuous, not to say humdrum, as so many pediatricians
pediatricians or oculists.
But the popular image of the profession is dominated by the bands of
of
2,000 by Saint Mark. But even a single
swine, put at 2,000
single devil could cause severe
severe
functional disorders. See Matthew 9:32-33.
9:32-33.
4' Christian Science,
Science, which of course is home grown, is a special
special case. Mark
Twain considered
considered Mrs.
meet
Twain
Mrs. Eddy's brand of divinity so admirably calculated to meet
the spiritual cravings of the average
expected it to become
become the
average flathead that he expected
national religion. See TWAIN,
TwAix, CHRISTIAN
CHRisTN SCIENCE
SCIENCE (1907).
(1907). The error must be attributed to the extreme
overwhelmed that great man in his old age.
extreme pessimism that overwhelmed
HeinOnline -- 78 Harv. L. Rev. 1511 1964-1965
1512
15 12
HARVARD LAW
LAW REVIEW
HARVARD
[Vol. 78
Janizaries,
Janizaries, drawn from the ranks of psychoanalysts
psychoanalysts consecrated unto
Freud, 5 whose dissonant kettledrums, trumpets and cymbals,
Freud,5
cymbals, and uncouth warcries, leaps, and whirlings
whirlings daily astound and terrify
terrify the public. 1Ia
The holy name of Freud is embroidered on their banners, but actually
actually
he bears no more responsibility
responsibility for them than Marx
Marx does for Stalin or
Castro, or Jesus for Pius XII or the Reverend Billy James Hargis. Freud
actually knew something about the scientific
scientific method,
method,77 as Marx actually
knew something about economics
economics (and Jesus perhaps, knew something
something
about God),
God), and so would have been incapable
richly
incapable of the flights of richly
hued fancy embarked upon by his disciples and their
their disciples. Dr.
Szasz is quite right in making and amply illustrating the point that in
this branch of medicine
medicine it is often exceedingly hard to tell the physi2Io-II).8
(pp. 21-22,
cians from the patients (pp.
2I-22, 64-65,
64-65, 2Io-rr).8
No system of politics, economics, religion or health, however addled,
can really do very'much
very much harm so long as
ag the customers are free to accept
accept
or reject. In a free market, it will have to abandon
abandon its patent absurdities,
however
cherished by its founding fathers and present management,
management, or
however cherished
see the trade go to rivals. Thus the Church of Rome, no longer able (and
perhaps no longer inclined)
inclined) to enforce orthodoxy
orthodoxy by the free use of autosda-f6,
demonstrating its unparalleled
da-fe, is demonstrating
unparalleled talent for survival by debriding
debriding
It is plainly getting
hamper that survival. It
itself of doctrinal growths that hamper
ready to heave overboard its ban on birth control,
control, and it is not very risky
to prophesy that sooner or later a like fate awaits
awaits its prohibition of divorce, which must have cost it millions of communicants. The Comdevelopment in
munists, of course, are still in that primitive stage of development
imagined that thought can be prohibited
which it is imagined
prohibited and the Pure Faith
imposed by force, forever and ever, world without end: "Such
"Such as do build
their faith upon/
upon/ The holy text of pike and gun . . . / And prove their
their
doctrine
orthodox/ By
By apostolic blows and knocks."
doctrine orthodox/
knocks." 99 (I admit that I
assert the wrongness of this basic Marxist tenet with a good deal more
1984 is a powerful arguassurance than I actually feel. George
George Orwell's I984
ment for its correctness.
correctness. On the other
other hand, it is impossible to achieve
efficiency - which the Communists really seem to want, at least
technical
technical efficiency
least
5' II recognize,
recognize, of course, that there are many balanced and reasonable
reasonable men
among
psychoanalysts. I myself actually know two or three such,
it
among even
even psychoanalysts.
such, but it
would be invidious to name them.
6' Szasz has been
been fairly criticized for confounding psychiatry
psychiatry with psychoanalysis
psychoanalysis
and ignoring
ignoring every other therapy for diseases of the mind. See Stafford-Clark,
Stafford-Clark,
Book Review,
74
YALE
L.J.
392,
393
(x964).
Szasz
simply
follows
the popular
Review, 74 YALE
392, 393 (1964). Szasz
popular
stereotype, but of course
course he ought to know better.
'7 Indeed, he carried it to preposterous lengths, as in his elaborate dissection of
of
a number of fragile little jokes, with a view to preserving in formaldehyde, describdescribessential principle of humor. See FREUD,
TsEiR
ing, and classifying the essential
FREUD, JOKES AND
AND THEIR
RELATION TO
16-27 (Norton ed. 1963).
x963). The better opinion seems
seems
RELATION
TO ThX
THE UNCONSCIOUS
UNCONSCIOUS 16-27
to be that this celebrated
celebrated opus of the Master was not itself intended as a joke.
Apparently Freud had a sincere
discover
Apparently
sincere admiration for jokes and merely wiihed
wiShed to discover
how one
one was made, like
like an earnest
earnest child pulling
pulling apart a butterfly. I am reminded
reminded
of Rudolf Virchow's statement that he had dissected 10,000
io,ooo cadavers and never
never
found a soul.
8B The phenomenon
of madness,
phenomenon was noted by Edgar Allen Poe, a connoisseur pf
more than aa century
century ago and chronicled with his usual macabre
macabre drollery. See The
Tarr and
and Professor
Professor Fetker,
Fether, in THE COMPLETE
Co3ULam TALES
TALEs AND
Po rMS OF
or
Dr. Tarr
AND POEMS
System of Dr.
ALLAx POE (Modern
1938).
EDGAR ALLAN
(Modern Library ed. 1938).
& Sons ed.
195-96, 199-200
199-200 (Bell
HUDIBRAS, Part I, Canto I, lines 195-96,
9o BUTLER,
BUTLER, HUDIDRAS,
(Bell &
,907).
1907).
HeinOnline -- 78 Harv. L. Rev. 1512 1964-1965
i965]
65]
19
BOOK REVIEWS
1513
to the extent necessary to manufacture hydrogen bombs'
bombs and military
-' without creating a class that has at least a technical
hardware -:..
is whether any variety of education can be
education. The question is
short at the
the border of
of independent
independent thought. Macaulay said that
stopped short
the Jesuits
Jesuits "appear to have discovered the precise point to which intellecthe
culture can be carried without risk of intellectual
intellectual emancipation."
emancipation." 10
10
tual culture
to
Whether there really is such a point,
poirit, and whether it is really possible to
strike it precisely, it is not at all clear. As the guiding geniuses of the
American Medical Association daiiy
daily demonstrate, political enlighteneducation.)
by-product of a scientific education.)
ment is not a necessary by-product
argue at conIn the United States, it can be argued - Dr. Szasz does argUe
siderable length - that only the psychiatrists can actually call in the
police to enforce conformity
conformity to their views (pp. 59-61).
59-61). If it is next to
to
impossible to send a man to jail for religious heresy and difficult to imprison him for political crimethink, it is relatively easy, possibly too
easy, to lock him up when he deviates noticeably from the psychiatrist's
to
standards of mental normality - standards that are quite likely to
include the particular
particular psychiatrist's notion of sound political opinions
opinions
(PP.
247). Szasz probably exaggerates the prestige and -public
(pp. 3-4, 247)·
public
psychoanalysis. It
It is probable
acceptance of psychiatry and particularly psychoamilysis.
that most God-fearing people, particularly
particularly run-of-the-mill,
run-of-the-mill' Roman
ProtestantS, and other such non- or anti-inCatholics, Whole Gospel Protestants,
tellectuals, regard it with indifference
indifference or suspicion. But its faithful,
commonly men of high intelligence
intelligence
though relatively few in numbers, are commonly
education, full of public spirit and philanthropy. They hold posiand education;
particularly in the
tions of power out of proportion to their numbers, particularly
legal profession, and they tend to regard most of Iife~s
lifes problems as
soluble
psychiatric principles.,
It is this
soluble by the proper application of psychiatric
principles.' It
marriage
marriage of psychiatry
psychiatry and law, and the resultant
resultant issue of what Dr.
crimes, new punishments,
punishments,. and new tyranny, that is the
Szasz sees as new crimes,
major thesis of his book.
Szasz, of course, is still a psychoanalyst
psychoanalyst and by no means free of the
Szasz,
stigmata
of
his
order.
He
reminds
one of those men of the sixteenth
sixteenth
stigmata
centuryKnipperdoling-who,
century - men of the breed of Matthias and Knipperdoling
-:- who,
having
proceeded to conceive
conceive theological
having thrown off the spell of Rome, proceeded
theological
lunacies far more preposterous than any of the superstitions
superstitions they had
renounced.
psychiatrist he commences with shock therapy,
renounced. Like a good psychiatrist
by administering horse-doctor's
horse-doctor's doses of nonsense. There
Th~re is no such
thing as mental illness
audience.) There
II) I (Alarm in the audience.)
illness (p. ii)I
should
such thing as involuntary mental hospitalization
hospitalization' (p.
(p'. "2o6)!
·206) I
should be no such
(Panic and general
general rush for the
the Fire Exits.) If
If these assertions
assertions are
made
6pater les bourgeois,
pour epater
bourgeois, as is probably
probably the case,
case, they
~ey have
have sucsucmade pour
ceeded
colleagues,
least among Dr. Szasz's more staid
staid colleagUes,
ceeded admirably, at least
many
many of whom
whom affect to take his iconoclasm
iconoclasm literally
literally and tap their
their, fore11
heads knowingly
knowingly when he
he is mentioned.
mentionedP
But in fact, our author is by
by
no
no means so crazy
crazy as he seems, for it shortly
shortly appears
appears that he
he is merely
merely
playing
Szasz
playing with labels. Though
Though "mental
"mental illness"
illness" is imaginary,
imaginary, Dr. Siasz
admits
"problems in living"
admits the
the existence
existence of "problems
living" which require remedies
remedies es10
1 MAcAuLAY, HIsTORY or ENGLAND 542 (Dutton ed. 1953).
10 1 MACAULAY, HIsTORY OF ENGLAND 542 (Dutton ed. I953). .
"1See,
e.g., Stafford-Clark,
11
See, e.g.,
Stafford-Clark, Book Review,
Review, 74
74 YALE L.J. 392
392 (1964).
(1964).
HeinOnline -- 78 Harv. L. Rev. 1513 1964-1965
1514
HARVARD
LAW REVIEW
REVIEW
HARVARD LAW
[Vol. 78
78
[Vol.
13-x7).
sentially similar
similar to those. applied to mental illness (pp. 13-1
7). After
we have abolished "involuntary
"involuntary mental hospitalization,"
hospitalization," we shall still
have "legal
"legal provisions for so-called psychiatric
psychiatric emergencies,"
emergencies," such as a
maniac with a bundle
bundle of dynamite (p. 226).
226). My alarm
alarm abates.
Once having satisfied myself that Dr. Szasz is in fact far from
meshuggah,
recognize that there is a core of sound good
meshuggah, I am ready to recognize
good
sense at the heart
heart of his jeremiad.
jeremiad. That core is contained
contained in chapter IO,
io,
"Criminal Responsibility,"
Responsibility," which deals with legal definitions of insanity,
"Criminal
Durham rule, and chapter ii,
"Acquittal by Reason of
particularly the Durham
II, "Acquittal
Insanity," which considers the disposition of persons so acquitted. His
Insanity,"
major propositions can
expansion of the
can be stated
stated pretty shortly. The expansion
insanity defense against charges of crime
crime has produced not greater
greater protection for those who deviate from accepted mores, but less; not greater
greater
separation of the criminal
criminal from the lunatic, but greater
greater homologization
homologization of
of
the two. For the first time in this country we have developed
developed a system
lettres de cachet worthy of Louis XI or J. V. Stalin.
of oubliettes and lettres
The tale is most instructive, and not well understood
understood by most laymen or
12
even by lawyers. 12
It
It is probable
probable that for most people
people the problem of abuse of the insanity defense
defense is still conceived
conceived in its classic
classic form: the unjustified acquittal and release of a criminal
criminal rich enough to hire lawyers and alienists to persuade
persuade a maudlin jury that he had been temporarily insane.
Mark
Mark Twain saw the problem almost a century
century ago: "[T]he
"[T]he prisoner
prisoner
had never been
been insane before
before the murder, and under the tranquilizing
effect
immediately regained
effect of the butchering
butchering had immediately
regained his right mind ....
. •. .
Formerly, if you killed a man, it was possible that you were insaneinsanebut now, if you, having friends and money, kill a man, it is evidence
that you are a lunatic."
13 The archetypical
lunatic." 13
archetypical case, still unforgotten
unforgotten after
unprepossessing wastrel whose
Harry K. Thaw, an unprepossessing
sixty years, is that of Harry
mother's bottomless purse kept him out of the electric
electric chair when he
14
Such highly
highly
murdered Stanford
Stanford White, an architect
architect of real eminence.
eminence.14
publicized
cases,
featuring
which
publicized
reams of psychiatric testimony, of which
nothing is comprehensible
each
comprehensible to the newspaper reader except that each
squad of experts denounces
denounces as ignorant
ignorant flapdoodle the opinions of the
other, have naturally tended
tended to give the insanity defense a public reputation that is at best dubious.
This jaundiced view of the defendant who claims to be i~sane
insane fits well
well
with one common
common American
American attitude toward criminals, which is that
that
they ought to be given the shortest shrift compatible
compatible with a strict construction
hanging judge, the man whose short
struction of the Bill of Rights. The hanging
way with criminals is one of his main qualifications
qualifications for the job, has always been
rather popular
popular with the laity and even with large sections of
ways
been rather
of
12 For a pioneering and prescient description and analysis of the-problem, see
12 For a pioneering and prescient description and analysis of the' problem, sec
Goldstein
Illness: Some
Some Observations
Observations on the
Goldstein &
& Katz,
Katz, Dangerousness
Dangerousness and
and Mental
Mental Illness:
Decision to
to Release
by Reason
Reason of
LJ. 225
225
of Insanity,
Insanity, 70
70 YALE
YALE L.J.
Decision
Release Persons
Persons Acquitted
Acquitted by
(196o).
(1960).
" TwAIN,
13
TWAIN,
1917).
1 7>19
4
14
A New
in
A
New Crime,
Crime, in
SKETCHES NEW
AND OLD
OLD 220,
220, 222,
225
SXETClIES
NEW AND
222, 225
See O'CONNOR,
O'CONNOR, COURTROOM
See
COURTROOM
TRAvERs
JEROME 171-242
171-242 (1963).
TRAVERS JEROME
(1963).
(Harper ed.
(Harper
ed.
WARRIOR:
THE COMBATIVE
COMBATIVE CAREER
WARRIOR: THE
CAREER OP
OF WILLIAM
WILLIAM
HeinOnline -- 78 Harv. L. Rev. 1514 1964-1965
ig6s]
1965]
REVIEWS
BOOK REVIEWS
1515
5
bar.'lD
bar.
the
But, as usual with us, ruthless Mr. Hyde and compassionate
peacefully), and Dr. Jekyll sees the
Dr. Jekyll coexist (not always peacefully),
criminal defendant
defendant in a very different light. The infliction
infliction of punishment is acutely painful to Dr. Jekyll, for he cannot really bring himself to believe that there is such a thing as a bad man, who deserves to
American attitude toward
be punished.1lo6 This second American
toward criminals
criminals is
splendidly illustrated by Will Rogers's idiotic remark that he never knew
a man he didn't like. If Dr. Jekyll, having this state of mind, finds himdilemma; if he inself upon the bench, he is obviously in an agonizing dilemma;
not
flicts punishment upon a "criminal,"
"criminal," in whose existence he does not
believe, such dreadful feelings of guilt oppress him as might have afflicted
a seventeenth
judge who did not believe in witches. He is thus
seventeenth century judge
psychiatrist, ready to grasp eagerly
eagerly the suggestion that the
ripe for the psychiatrist,
prescription
prescription of therapy for sick men is a wholly different thing from the
punishment of bad men and that virtually all criminals are really sick.
1
Durham rule,
designed
ruler
designed to transform
transform as many criminals as
Hence the Durham
possible into patients of psychiatrists.
psychiatrists.
to
Durham stimulated Mr. Hyde to
Action, of course,
course, begets
begets reaction. Durham
"Hast thou appealed
convulsive activity. Hyde echoes Festus: "Hast
appealed unto
go." Is
18 If you claim the benefits of
Caesar? unto Caesar shalt thou go."
insanity, we will see that you get them, in full measure,
measure, pressed down
and running over. The speedy result of Durham
Durham was the passage of an
act of Congress making commitment
commitment to an insane
insane asylum mandatory
insanity.' 9 The net result is that, in
for persons
persons acquitted by reason of insanity.19
jurisdictions
jurisdictions with mandatory
mandatory commitment
commitment statutes,
statutes,200 one who successreason
of
insanity is likely to be a
his
innocence
by
fully establishes
establishes
innocence
good deal worse off than a genuine criminal,
criminal, who is sent to jail.
jail. Dr.
5
John W.
W. Goff,
Goff, of
the old
of the
A
A splendid
splendid specimen
specimen of
the breed
breed was
was Recorder
Recorder John
of the
old
New York General Sessions Court, of whom an admiring cop once said,
said, "Recorder
"Recorder
Goff is a fine man, but he thinks everybody ought to go to jail at least once."
Oldtime reporters
OIdtime
reporters and policemen
policemen told many such tales of Goff, mostly with
affection.
"As
16
As Recorder Goff was a prize-winning
prize-winning specimen
specimen of the hanging judge, so the
overdeveloped, in
points of the other breed were
were strongly
strongly developed,
developed, perhaps
perhaps even overdeveloped,
the late Justice Curtis Bok of Pennsylvania. I have heretofore commented
commented on
Weltanschauung in my review of his book, Star
Justice Bok's Weltanschauung
Star Wormwood, 69 Yale
L.J. 193
193 (I959).
i"The(1959).
rule denies
denies criminal
criminal responsibility
responsibility if the
accused's unlawful
17 The rule
the accused's
unlawful act "was the
defect.' Durham v. United States, 214 F.2d
product of mental disease or mental defect."
1954).
862,
862, 874-75 (D.C.
(D.C. Cir. 1954).
IsActs 25:12 (King
(King James).
18 Acts 25:12
James).
AxN. § 24-30I(d)
19D.C.
19
D.C. CODE
CODE ANN.
24-301(d) (i96I);
(1961); see Krash, The Durham
Durham Rule and
District of Columbia,
Columbia, 70
Administration of the Insanity
Judicial Administration
Judicial
Insanity Defense in the District
70
YALF
(196i). Dr. Szasz reminds us of a half-forgotten piece of
YALE L.J. 905, 941 (1961).
of
io CI.
Cl. & F.
2oo, 88 Eng. Rep. 718
history. The protagonist of M'Naghten's
F. 200,
M'Naghten's Case, 10
1843), which
(H. L. 1843),
which laid down the orthodox
orthodox rule on the insanity defense, ended
ended his
Matteawan. In fact, as Dr. Szasz
days in Broadmoore, the English
English equivalent of Matteawan.
Szasz does
not seem to realize,
realize, the practice of automatic commitment
commitment of persons acquitted
acquitted by
reason of insanity goes back at least to the beginning of the last century. Even
Even
& 40 Geo.
Geo. 3,
c.94) English and American
before the original
original Act of Parliament
Parliament (39 &
3, C.94)
American
such disposition of insane
courts on their own
own initiative assumed power to order such
J.,
724-25 (1962)
(Clark, J.,
defendants. See
See Lynch v. Overholser, 369 U.S.
U.S. 705, 720,
720, 724-25
(1962) (Clark,
dissenting)..
dissenting)
v. Overholser,
20There are at least a dozen, including New York. See Lynch
Lynch v.
2°There
supra note 19,
ig, at 709 n4.
n4. Similar problems
supra
problems seem to exist in England. See Thomas,
REV. 546,
Appeal, 27 MODERN
MODRN L. REv.
Court of
Punishment in the Court
Theories
of Punishment
of Criminal
Criminal Appeal,
Theories of
56.-62 (1964).
561-62
(1964).
15
HeinOnline -- 78 Harv. L. Rev. 1515 1964-1965
1I16
HARVARD LAW
LAW REVIEW
[Vol. 78
78
abundantly clear
clear-- and
and here he has plenty of corroboraSzasz makes abundantly
tion-- that if the mental hospital
hospital to which the blameless one is distion
patched differs at all from aa penitentiary, it differs
differs for the worse (pp.
.21 There
There is scarcely a pretense of therapy. No term is
83-84) .21
is set to
to
his imprisonment. He may very well pay five or ten
ten years for a crime
his
sane man could commit for a maximum price of eighteen months.
that a sane
Indeed, since there is no psychiatric therapy for "sociopathic
"sociopathic personality disturbance, antisocial reaction,"
reaction," a piece of psychiatric cant
criminal propensities, it is entirely possible that the psychiameaning crimipal
trists in charge of the institution will never be willing to certify that he
can be released without danger to the public.
Thus, the merciful Durham
Durham rule permits life imprisonment for relaDurham type of
tively minor offenses. Worst of all, the gates of the Durham
prison are far harder to push open by legal means than are those of the
ordinary pen. No matter how indifferent or arbitrary the refusal of the
prisoner-patient's medical custodian to release him as sane, it is exceedingly difficult even for an inmate who has friends and money - and
ordinary wretch - to obtain meaningful
virtually impossible
impossible for the ordinary
judicial review. In theory, of course, the Great Writ runs to the superintendent of a hospital as surely as to the warden
warden of a penitentiary.
Practically, Dr. Szasz is right in saying that habeas corpus is far from
an adequate re!Dedy
remedy (pp. 66-70).
66-70). Considering the fact that asylums,
unlike prisons, do not usually have law
law libraries, the writ is sought by
surprising numbers of inmates (practically all of them on the criminal
campus), but with minimal success. The reasons for this
side of the campus),
monotony
monotony of result were candidly
candidly stated by a majority of the court in
22
22 The court is naturally inclined to lay great
Ragsdale
v.
Overholser.
Ragsdale
Overholser.
great
weight on expert evidence, which is almost always unanimously
unanimously against
against
weight
an indigent petitioner;
petitioner; indeed
indeed many a judge may suspect that a petition
in forma pauperis
pauperis emanating
emanating from a mental institution is probably itself
a symptom of paranoia.
least
paranoia. Even if the claimant to sanity (or at least
expert
harmlessness) is rich enough
enough to hire his own psychiatrists, the expert
testimony
-and
commitment
testimony will be in sharp conflict
conflictand the mandatory
mandatory commitment
statute has been construed to mean not only that the petitioner
petitioner must
must
bear the
danger
bear
the burden
burden of showing
showing that his release
release creates
creates no potential danger
23 Even
to the public, but that he must do so beyond a reasonable
reasonabledoubt.
doubt.23
Even
in the
the rare cases in which
which the psychiatrists are willing to take a chance,
chance,
the courts are likely to throw up legal obstacles to freedom.2244 In short,
the odds
odds against
against the petitioner are
the
are today so crushing
crushing that only a lunatic
would
would allow
allow himself to be acquitted by reason of insanity.
The problem
problem is beginning
beginning to be perceived,
perceived, and limits are beginning
beginning to
be
be set to the
the more or
or less
less benign
benign despotism of the psychiatrists
psychiatrists under
under
2" The Court of Appeals for the Second Circuit has found it unnecessary to de21 The Court of Appeals for the Second Circuit has found it unnecessary to decide
cide whether
whether Matteawan
Matteawan is
is aa hospital
hospital or
or aa jail,
jail, although
although it exhibited a strong
preference
in favor
classification. United
States ex
favor of
of the
the jail
jail classification.
United States
ex rel.
reI. Carroll
Carroll
preference. in
v.
I17, 121
Cir. i961),
and case
case remanded
294 F.2d
F.2d II7,
121 (2d
(2d Cir.
1961), judgment
judgment vacated
vacated and
remanded
v. McNeill,
McNeill, 294
with
directions
to
dismiss
as
moot,
369
U.S.
i49
(1962).
with
directions to dismiss as moot, 369 U.S. 149 (1962).
22 281 F.2d 943 (D.C. Cir. ig6o).
222 281 F.2d 943 (D.C. Cir. 1960).
3 Id. at 946-47.
23Id.
946-47.
24
Cf. at
Hough
v. United States, 271 F.2d 485 (D.C. Cir. 1959); In re
24 Cf. Hough v. United States, 271 F.2d 485 (D.C. Cir. 1959) ; In
re Golden,
Golden, 341
341
Mass.
672,
171
(1961).
Mass. 672, 171 N.E.2d
N.E.2d 473
473 (1961).
HeinOnline -- 78 Harv. L. Rev. 1516 1964-1965
i96s]
65]
19
REVIEWS
BOOK REVIEWS
1517
the Durham
Durhamrule and the anti-Durham
anti-Durham statutes. The Supreme Court has
limited the District of Columbia
Columbia mandatory commitment
commitment statute, and
congeners in other jurisdictions, to cases in which the
presumably its congeners
defendant
defendant himself pleads
pleads the defense
defense of insanity; the Court invoked
invoked the
25 The D.A.'s
D.A.'s
rough justice of the "appeal
"appeal unto Caesar"
Caesar" argument. 25
office can no longer, by itself raising the insanity defense, turn the
26
of nuisances.
incarceration of
indefinite incarceration
rule into a device for the
Durhamrille
Durham
the indefinite
nuisances.26
Moreover, there
there are other judicial intimations that some process
process is due
even a putative madman. In the Ragsdale
Ragsdale case itself, in which the majority of the court laid so much stress on the presumption against release,
Judge Fahy, concurring, made the modest suggestion that "due
"due process
reasonable time, which will vary
may well require . . . that within a reasonable
confinement be made dependent
from case to case, continued confinement
dependent upon civil
safeguards
procedural safeguards
commitment proceedings,
proceedings, with their greater
greater procedural
...• • •"; 27
2T The Court of Appeals for the Second Circuit
•
Circuit has held unconstitutional, as denying
constitutional,
denying the equal protection of the laws, a New York
York
Statute that permits the Commissioner
Commissioner of Mental Hygiene to transfer
transfer
from an ordinary mental hospital to an institution
criminally
institution for the criminally
insane
"manifests criminal
insane anyone who happens to be an ex-convict, if he "manifests
tendencies" -- as
as- by trying to escape - while in the noncriminal
noncriminal loony
tendencies"
bin. Unfortunately the petitioner's death while the appeal was pending
pending
28
Supreme Court to vacate
caused the Supreme
vacate the judgment
judgment as moot.28
Most important of all, there are many indications that the bar, or its
elements, has begun to realize that the person
more conscientious elements,
person accused of mental illness has no less need of counsel
counsel than the person ac29 The key to the problem
cused of crime. 29
problem appears to lie in the devising
of fair procedures,
procedures, not wholly dominated by psychiatrists, to review
involuntary confinement
confinement for mental illness, and in making
making sure that
cooperating
counsel are available for those inmates who are capable of cooperating
adequate remedy, when
in their own hearings. Habeas corpus
corpus can be an adequate
by
even the indigent inmate has a lawyer
lawyer and a chance to be examined
examined by
impartial doctors. This, of course,
course, is far easier said than done, but the
problem
peculiarly unproblem must be tackled
tackled if we are to avoid Dr. Szasz's peculiarly
pleasant
1984.
pleasant version of Orwell's
Orwell's I984.
on
Dilation upon the criminal problem precludes adequate comment on
some of Dr. Szasz's secondary philippics
philippics -- notably his argument that
simplicity is anything but a virtue in civil commitment procedures,
railroading of the unwanted and for
since it is a synonym for the easy railroading
the denial of due process
process (ch. 5); and his very shrewd analysis of the
absurd and undignified role of the psychiatrist
psychiatrist in probate proceedings,
proceedings,
which
"the impression
which is essentially to create
create "the
impression that a scientific decision
decision
Lynch
v. Overholser, 369 U.S. 705, 715 (1962).
Lynch
v. Overholser,
U.S. 705,
(1962).
225 See
Note,
A Logical369
of 715
Criminal
Analysis
Responsibility and Mandatory
26 See Note, A Logical Analysis of Criminal Responsibility and Mandatory
25
Commitment, 7o
70 Yale L.J. 1354
1354 (g6i).
(1961).
Commitment,
27 28r F.2d at 951.
2278 281 F.2d at 951.
United
States
ex
rel.
Carroll
v. McNeill,
McNeill, 294
294 F.2d
F.2d 117
(2d Cir. 1961),
g6i), judg28 United States ex rel. Carroll v.
II7 (2d
ment vacated
case remanded
remanded with directions
ment
vacated and case
directions to dismiss
dismiss as moot, 369 U.S. 149
(x962).
(1962).
2" See,
the October
1964 issue of
of THE
THE LEOL
B-sEr CASE (Vol.
(Vol. 23,
23, No.
29
See, e.g., the
October 1964
LEGAL AiD
Am BRIEF
x) -the
organ of
of the
the National
National Legal
Legal Aid and Defender Association
I)
- the organ
Association -which
- which is
largely devoted to "Legal
"Legal Rights of the Mentally
Mentally Ill."
ID."
HeinOnline -- 78 Harv. L. Rev. 1517 1964-1965
HARVARD
LAW REVIEW
HARVARD LAW
1518
[Vol. 78
[Vol.
78
expert
has been reached"
reached" (p.
(p. 76)
76) by giving a scientifically impossible expert
opinion on the sanity of a man on whom he never laid eyes. Szasz
Szasz may
be irreverent, he may even be guilty of some hyperbole, when he says
that "questioning
"questioning the testator's sanity serves to set aside a will that
that
inheritance game"
game" (p.
injures the community's sense of fair play in the inheritance
75),O but
but he
he is
is uncomfortably
75),30
uncomfortably close
close to
to the
the truth.
truth.
I cannot forbear mention of one fearsome problem
problem that Dr. Szasz
Szasz
uncharacteristically) leaves unresolved.
unresolved. That
That is the
raises but (most uncharacteristically)
problem of the madman
madman who is also a head of state. Szasz actually
actually
exemplified by King
raises the problem in its least serious form, as exemplified
Ludwig II
II of Bavaria (pp. 48-53).
48-53). Ludwig, though dotty enough, reElagabalus,13
sembled his equally dotty Roman prototype, the Emperor Elagabalus,31
dangerous to nothing except the Treasury. If he had been a
for he was dangerous
private
But
private citizen there would have been no reason to lock him up. But
deus ac dominus,
dominus, or the
what are we to do when a Roman Caesar, deus
Autocrat of all the Russias, or der Fuhrer,
Fiihrer,or the First Secretary
Secretary of the
Communist Party, happens to be a homicidal maniac? We need not look
look
backward to Caligula or Ivan the Terrible: Stalin's unending purges and
Hitler's EndlIsung
Endlosung of the Jewish question are still quite fresh in memory.
The chances of popular revolt against such tyrants seem to be practically
practically
nil; they are, in fact, usually admired and even loved by the rabble.
We are told that for long after Nero's death his tomb was regularly
regularly
32
presumably
flowers,32
presumably by humble citizens
citizens who admired
adorned with flowers,
his grandiose style, as the German SpiessbUrger
Spiessbiirger of thirty years ago admired GOring's.
(Tring's. The only ways, other than natural
natural death, to remove
such monsters have been external
conquest or palace conspiracy, usually
external conquest
revolution, despite its obvious dethe latter. In such polities the palace revolution,
ficiencies, seems to be the best solution so far devised, and maybe the
imaginable one. Whether future Harmodiuses
Harmodiuses and Aristogeitons
Aristogeitons
only imaginable
will consult their psychiatrists before
before resolving to remove the contemporary Hipparchuses
Hipparchuses remains to be seen.
This review
review is of inordinate length. That it is so is a tribute to Dr.
Szasz's considerable
considerable ability
ability to make challenging
challenging and provocative statements -- and to the fact that he is rarely totally wrong.
*
JosEPH W. BISHOP,
BisHoP, JR.*
JOSEPH
JR.
30 But I cannot take literally his statement, on the same page, that the very
30 But I cannot take literally his statement, on the same page, that the very
fact that
that the
the will
will is
is contested
contested shows
shows that the testator had adequate contact with
fact
reality,
because it
demonstrates that he wanted to disinherit
it demonstrates
disinherit his natural heirs
reality, because
and knew
knew the
the rules
rules for
doing so.
so. An octogenarian's
and
for doing
octogenarian's desire to leave his wealth
wealth to a
cutie in
in white, who has fed him his gruel and pills and otherwise
othenvise soothed his aches
and pains, may denote contact
contact with reality; as much can hardly be said when the
principal
principal beneficiary
beneficiary is a crank foundation.
31 See x GIBBON, DECLINE AND FA= o =
RomAN EMPIRE
EMPIRE 282 (Milman
31 See I GmBoN, DECLINE AND FALL OF THE ·ROMAN
(Milman ed.
1914).
1914).
"2See
SUErONIUS,
32
See 22 SUETONIUS,
THE
Lnvas OF
oF THE
ME CAESARS
CAESARS 185
(Loeb ed.
ed. 1930)
1930). •
TID: LIVES
I8S (Loeb
of Law,
University.
.** Professor
Professor of
Law, Yale
Yale University.
HeinOnline -- 78 Harv. L. Rev. 1518 1964-1965