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Article Excerpt
I. INTRODUCTION
II. CRIMINAL RESPONSIBILITY AND THE CONSTITUTION III. MENTAL DISORDER AND CRIMINAL RESPONSIBILITY A. MENTAL DISORDER B. THE ACT DOCTRINE C. MENS REA D. LEGAL INSANITY E. MENS REA AND LEGAL INSANITY IV. CLARK V. ARIZONA A. BACKGROUND B. THE INSANITY ISSUE C. THE MENS REA ISSUE 1. The Tripartite Evidence Construction 2. The Channeling Argument V. THE CONSTITUTIONALITY AND WISDOM OF ABOLISHING MENS REA AND LEGAL INSANITY A. ABOLISHING MENS REA B. ABOLISHING THE INSANITY DEFENSE C. ALTERNATIVES TO ABOLITION VI. THE FUTURE OF MENS REA AND LEGAL INSANITY A. THE GENERAL CHALLENGE TO RESPONSIBILITY B. THE ROOTS OF RESPONSIBILITY VII. MENS REA, LEGAL INSANITY, AND COMMON SENSE VIII. CONCLUSION
I. INTRODUCTION
Ever since the affirmative defense of insanity took its first truly modern breath in 1843 in M'Naghten's Case, (1) its relationship to its cousin, mens rea, (2) has been plagued with confusion. How can one be "insane" yet still have the mental state element required by the definition of a particular crime? Can mens rea alone be a sufficient basis for a sensible theory of criminal responsibility? Are there constitutional limits to a state's power to eliminate or restrict the insanity defense or the mens rea requirement? May states constitutionally preclude defense evidence directly relevant to insanity or lack of mens rea? More generally, what impact should recognized mental disorders have on criminal responsibility? Should evolving ideas about the nature and causes of mental disorders and of human behavior in general require changes in our settled views of blameworthiness?
In Clark v. Arizona, (3) the Supreme Court recently had one of its rare opportunities to clarify some of these issues. (4) The questions Clark presented were whether Arizona's unusually narrow insanity defense test violated the defendant's substantive due process rights and whether an Arizona rule that excluded virtually all expert evidence concerning mental disorder offered for the purpose of negating mens rea violated procedural due process. (5) Alas, the decision clarified little and may in fact have further muddied the conceptual and practical waters. (6)
To lay the foundation for understanding Clark, in Parts II and III we first examine the law of criminal responsibility, including its constitutional dimensions, and then explore the relevance of mental disorder to well-settled principles of criminal responsibility, such as the formation of mens rea and the criteria for the defense of insanity. Part IV considers Clark in detail. Part V addresses the constitutionality and wisdom of abolishing either the requirement of mens rea or the defense of legal insanity. Part VI considers the future of these two doctrines, both of which, we contend, are central to preserving just and sensible principles of blameworthiness. We conclude that contemporary scientific approaches to understanding human behavior do not undermine these principles and our legal practices based on them.
II. CRIMINAL RESPONSIBILITY AND THE CONSTITUTION
The structure of criminal responsibility is superficially straightforward. Crimes are defined by their "elements," which always include a prohibited act and in most cases a mental state, a mens rea, such as intent. The Constitution's Due Process Clause has been construed to require that the prosecution must prove all the elements defining a criminal offense beyond a reasonable doubt. (7) Even if the state can prove all the elements beyond a reasonable doubt, the defendant may avoid criminal liability by establishing an affirmative defense of justification or excuse. (8) The Due Process Clause has been interpreted to permit a state to place the burden of persuasion for affirmative defenses on either the prosecution or the defense. (9)
Persistent confusion about the meaning of mens rea, as well as deep and complex constitutional issues, cloud this facially straightforward account of criminal responsibility. First, let us clarify some terminological confusion. In its narrow sense, mens rea refers to the specific mental state or states required by the definition of all crimes other than strict liability crimes. (10) The state must prove these definitional elements beyond a reasonable doubt. Mens rea in this sense is absent, and the defendant must be acquitted of a crime requiring such a mens rea, if the defendant is able to cast a reasonable doubt on whether the mental state was formed in fact.
"Mens rea" is also sometimes used more broadly to refer generally to criminal liability, responsibility, blameworthiness, or culpability. In these senses, it refers to the situation in which the prosecution is able to prove all the definitional elements beyond a reasonable doubt and the defendant fails to establish an affirmative defense. (11) Under these conditions, the defendant is ultimately blameworthy or criminally responsible. The defendant can avoid mens rea in this broader sense, defeating any criminal blameworthiness, either by negating any element of the crime charged or by establishing an affirmative defense. In the remainder of this Article, we will use the term mens rea in the narrower sense--the specific mental state element required by the definition of the crime.
Defining crimes is a quintessential right of states, (12) but many crimes have significant common law, and indeed pre-common law, (13) roots predating the settlements in the Constitution. This raises the central constitutional question about crime: are there constitutional limitations on a state's right to define crimes grounded in common law principles codified in the Constitution, either expressly or, more fruitfully, implicitly in the doctrine of substantive due process? (14)
In Robinson v. California, (15) the Court held that the Eighth Amendment prohibited punishing a person for being an addict. The Justices disagreed substantially about the rationale for the holding, and there was no single opinion for the Court. The plurality opinion was replete, however, with suggestions that criminalizing and punishing the status of being an addict is unconstitutional because that status is beyond the control of the addict. (16) The Robinson Court did not explain how the taking of illegal drugs by an addict--which it took great pains to admit could be criminalized by the state--is any more within the addict's control than the status of being an addict.
Six years later, the Court stepped back from the precipice of constitutionalizing "loss of control" in Powell v. Texas, (17) which held that the Constitution does not prevent a state from criminalizing public drunkenness, even when the target of the prosecution is suffering from the "disease" of chronic alcoholism and is thus allegedly powerless to control his behavior. Although Justice Marshall's plurality opinion in Powell has been read narrowly as simply an unwillingness to extend Robinson from the impermissibility of punishing a status to the impermissibility of punishing allegedly uncontrollable acts, the opinion signaled more broadly that the Court considered the doctrines of criminal responsibility firmly within the discretion of the states. It said it was loathe "under the aegis of the Cruel and Unusual Punishment Clause" to become "the ultimate arbiter of the standards of criminal responsibility." (18) Justice Marshall explained:
We cannot cast aside the centuries-long evolution of the collection of interlocking and overlapping concepts which the common law has utilized to assess the moral accountability of an individual for his antisocial deeds. The doctrines of actus reus, mens rea, insanity, mistake, justification, and duress have historically provided the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man. This process of adjustment has always been thought to be the province of the States. (19)
It is difficult to imagine a clearer, more straightforward expression of deference to the states concerning the definitions of crimes and defenses. Yet, beginning in 1975, the Court decided a series of cases that vacillated on the question of the constitutional limits on a state's freedom to define crimes and defenses and the concomitant power to allocate criminal burdens of proof.
In Mullaney v. Wilbur, (20) the Court considered the constitutionality of Maine's rather unique burden-shifting murder statute. Maine included "malice" as one of the elements of murder, but defined it to exclude killings committed in the heat of passion upon sudden provocation. (21) Even though malice so defined was an element of the crime--an element the prosecution had to prove beyond a reasonable doubt--the Maine statute imposed the burden of proving provocation/passion on the defendant. (22) This shifting of the burden of proof clearly violated Winship's requirement that the state must prove every element of the crime charged beyond a reasonable doubt, and the Court had little trouble striking down the statute on that basis. The opinion also contained stunning language, however, that seemed to suggest that Winship applied to any fact bearing on the defendant's "degree of criminal culpability," (23) whether or not it was among the elements of the crime. (24) It appeared that the Supreme Court was taking a tentative further step toward constitutionalizing substantive criminal law.
The imagined turn toward a more intrusive federal role in the substantive criminal law proved just that--imagined. Two years after the controversial dictum in Mullaney, the Court returned to Powell's more restrained approach in Patterson v. New York, (25) which addressed a New York statute that was functionally equivalent to the Maine statute considered in Mullaney. To reduce a killing from murder to manslaughter, New York had adopted the Model Penal Code's "extreme emotional disturbance" test. (26) This doctrine was meant to serve the same partially mitigating function as the provocation/passion formula, but it provided a broader test that was allegedly more consistent with modern understanding of behavior and that better tracked culpability. Unlike Maine, however, New York explicitly treated this doctrine as a partial affirmative defense and placed the burden of persuasion on the defendant.
Although "extreme emotional disturbance" is as relevant to the degree of a defendant's culpability as "heat of passion," the Court rejected a broad reading of Mullaney that would have required the state to prove beyond a reasonable doubt every fact bearing on culpability, and instead gave determinative weight to New York's decision to treat emotional disturbance as a partial affirmative defense:
[E]ven if we were to hold that a State must prove sanity to convict once that fact is put in issue [a position the Court rejected], it would not necessarily follow that a State must prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of the punishment. (27)
The Court strongly reiterated that states have extensive discretion to define crimes and defenses as they wish and to allocate the burden of persuasion accordingly:
If the State ... chooses to recognize a factor that mitigates the degree of criminality or punishment, we think the State may assure itself that the fact has been established with reasonable certainty. To recognize at all a mitigating circumstance does not require the State to prove its nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, too expensive, and too inaccurate. (28)
The Patterson Court did recognize that there were constitutional limits to the state's ability to redefine at least some elements as affirmative defenses and thus to shift the burden of persuasion, but the examples it gave--such as a legislature declaring a person presumptively guilty of a crime (29)--seemed to place little, if any, effective limit on the state's discretion. (30)
Patterson did not explicitly overrule Mullaney, but it seemed inconsistent with it, and that apparent inconsistency created an industry of commentary. (31) Indeed, the two cases together spawned an enormous debate between the "substantivists" and "proceduralists." (32)
Substantivists believed that Mullaney was correctly decided, that Patterson threatened to erode Winship's protections, and that states could not, by the mere artifice of re-labeling an element as an affirmative defense, relieve the state of its burden of proof on the definitional elements. (33) For example, imagine a homicide statute that defined "intentional action that caused the death of a human being" as first degree murder and then forced the defendant to prove as affirmative defenses that the defendant did not intend to cause death (reducing the grade to second degree murder), was not aware of a substantial and unjustifiable risk of death (reducing the grade to manslaughter), and should not have been aware of a substantial and unjustifiable risk of death (acquittal). (34) In such a situation, Winship's protection of liberty would be largely illusory.
In contrast, the proceduralists thought that, as a matter of constitutional law if not of policy, the states have virtually limitless discretion to re-label traditional elemental facts as affirmative defenses. (35) Indeed, that very decision--whether a fact should be an element for which the state has the burden of proof or an affirmative defense that the defendant might be required to prove--is precisely the kind of policy decision the proceduralists believed cases like Powell and Patterson properly placed within the state's judgment.
In Montana v. Egelhoff (36) which was the last important general mens rea case decided before Clark, the Court addressed these issues, but in a context different from re-labeling elements as affirmative defenses. The question answered by Egelhoff was whether, and under what conditions, the State may constitutionally bar a defendant from introducing relevant and reliable evidence for the purpose of negating an element. (37) Egelhoff was charged with first degree murder under a Montana homicide statute that defined the crime as requiring purpose or knowledge. (38) Egelhoff sought to negate the inference of intent arising from strong physical evidence consistent with the formation of an intent to kill by introducing evidence of his incontrovertibly extreme intoxication at the time of the crime. (39) The intoxication evidence was his only plausible means to negate intent, but the evidence of intoxication was excluded from the jury under a Montana statute that specifically barred the use of evidence of voluntary intoxication to negate mens rea. (40)
The Supreme Court held that such exclusion did not violate the defendant's due process rights. (41) The Justices disagreed about whether the Montana statute was an evidentiary rule or a redefinition of the offense of murder. (42) All nine Justices agreed, however, that states had substantial discretion to define crimes. As Justice Ginsburg said in her concurrence, citing Powell, "States enjoy wide latitude in defining the elements of criminal offenses, particularly when determining 'the extent to which moral culpability should be a prerequisite to conviction of a crime.'" (43) Moreover, all nine Justices agreed that a criminal defendant does not have an absolute right to present evidence relevant to his defense.
Justice Scalia began the plurality opinion by noting that there was no indication in historical practice that the use of voluntary intoxication evidence to negate mens rea was so entrenched that it was a "fundamental principle of justice." (44) He continued by arguing that the defendant's fight to introduce even "crucial" and reliable evidence was not absolute and could yield to "valid state justifications" that might support exclusion. (45) One might of course take issue with some or all of these justifications, but these kinds of policy decisions are precisely the kinds of decisions arguably left to state legislatures. (46)
The plurality also made short work of Egelhoff's argument that the Montana rule violated Winship. Justice Scalia reasoned that Montana's rule did not shift the burden of persuasion, but by excluding intoxication evidence simply made it easier for Montana to prove mens rea beyond a reasonable doubt, an effect that any evidentiary rule might produce. (47) Such burden-reducing evidentiary rules are constitutionally permissible unless they themselves violate a fundamental principle of fairness, which, Justice Scalia had already concluded, Montana's rule did not. (48)
This was the state of the law until the Court had its chance to speak again in Clark. Before we address that opinion, we first briefly consider the concept of mental disorder, and then review in some depth well-settled principles of criminal responsibility and the relevance of mental disorder to those principles.
III. MENTAL DISORDER AND CRIMINAL RESPONSIBILITY
What is a "mental disorder" and what is its potential relevance to whether a person suffering from it acted, possessed a requisite mens rea, or qualified for a mitigating or excusing condition such as legal insanity? (49) To answer these questions requires more detail about the nature of recognized mental disorders and the law's criteria for act, mens rea, and legal insanity.
A. MENTAL DISORDER
There is no consensus--philosophically or scientifically--on the definition of "mental disorder." That lack of consensus should hardly surprise us. "Disorder" and "order," abnormality and normality, are normative terms applied to behavior that science cannot independently define and that therefore inevitably lead to disagreement. They implicate many difficult empirical and theoretical questions that are relevant to our argument, but are largely beyond its scope. We will later have occasion to examine some of these questions, but for now let us focus on the current scientific and clinical orthodoxy about mental disorder.
Probably the most widely used definition in the United States, and perhaps in the world, is contained in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. (50) This document admits, however, that "no definition adequately specifies precise boundaries for the concept of 'mental disorder,'" (51) and that its definition has been subjected to substantial criticism. (52) The Supreme Court has repeatedly and opportunistically used this disagreement to justify outcomes as disparate as requiring an intermediate, "clear and convincing evidence" burden of proof in involuntary civil commitment cases, (53) rejecting a constitutionalized control test for criminal responsibility, (54) and upholding the constitutionality of an especially onerous form of involuntary commitment for so-called mentally abnormal, sexually violent predators. (55) As we shall see in the next Part, they again use this conclusion to support their argument in Clark. (56)
Nevertheless, there is substantial agreement that some behavior, especially behavior indicative primarily of a loss of the capacity for rationality, should be considered the product of a biological or psychological defect. For example, most observers agree that a gross and substantial loss of touch with reality qualifies as a severe abnormality. Indeed, there are special legal rules for the differential treatment of people with such abnormalities in most areas of civil and criminal law. (57) Within the latter, for example, in addition to doctrines concerning criminal responsibility, there are doctrines concerning competence to plead guilty, competence to stand trial, competence to be sentenced, and competence to be executed.
There are many open conceptual and empirical questions about mental disorders, but the law routinely deals with cases involving people who suffer from them. One way to think about the difficult questions about mental state and blameworthiness is to analogize them to electricity. Modern physics has exposed the foundations of the elemental particles, including the electron, as a kind of mysterious expression of a set of strange and counter-intuitive physical rules; in some ways it seems the more we learn about quantum physics the more our macro-reality seems to be an illusion. Yet those foundational uncertainties hardly disable us from using electricity, or designing circuits.
Healthy skepticism about mental disorder and the potential relation between it and criminal responsibility, especially in marginal cases, is warranted; outright rejection is not.
B. THE ACT DOCTRINE
An intentional act is crucial to the definition of any conduct we wish to criminalize. Indeed, our very use of the word "conduct" in the last sentence conveys the notion that acts, not mere thoughts or desires, are the domain of crime. Although thoughts and desires can be intentionally produced, and can be evaluated morally, (58) we do not criminalize these mental states because by themselves they do no harm, and the reach of the criminal law is defined in large measure by the harm principle. (59) Moreover, the requirement of an act before blame and punishment may be imposed appears to have constitutional status. (60) On the other hand, harms or threatened harms, all of which result from actual or potential body movements or intentional lack of movement, cannot be attributed to the agent as an agent unless those movements or lack of motion are intentional. Spasms and reflexes, for example, can cause or risk harm, but in most cases we do not hold the agent responsible for them. The challenge for the law is how to define a "voluntary" or "intentional" act (or omission in cases in which the agent has a duty to act) in a sensible and useful way.
The criminal law's evolving answer has never been entirely satisfactory. Indeed, some have resorted to defining a criminally cognizable "act" by what it is not. (61) Nonetheless, as with the notion of "mental state," the law has managed to develop a useful working definition: an "act" for purposes of the criminal law is an intentional bodily movement (or intentional inaction) performed in a state of reasonably integrated consciousness. (62) "Intentional" in this definition means that the agent's bodily movement is at least potentially rationalizable as having been performed for a reason.
Mental disorder seldom interferes with an agent's ability to act intentionally, even though in infrequent cases it may cloud consciousness. For example, depersonalization and less severe delirium can compromise consciousness without rendering the person's movements non-actions. (63) It is only at the extreme, when consciousness is substantially or completely obliterated, that the law will acquit the defendant because action was lacking. Sleepwalking is a classic example. (64) There is a debate about whether apparently environmentally responsive, goal-directed behavior performed with clouded consciousness should be considered action or not, (65) but criminal behavior performed in such states either negates the action requirement of the prima facie case or it satisfies the criteria for the affirmative defense of automatism. (66) Sufficiently clouded consciousness as a result of mental disorder might thus defeat criminal responsibility, but, again, these cases are rare.
C. MENS REA
As Justice Holmes famously observed, "Even a dog distinguishes between being stumbled over and being kicked." (67) Mens rea is considered the royal road to the assessment of culpability because it indicates the agent's attitude towards the rights and interests of his fellow citizens when an agent harms or threatens them. As Justice Jackson wrote in Morissette v. United States,
The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to".... (68)
Intentional body movements may cause harms, but if the defendant has been acting as carefully as we can expect a morally well-constituted agent to act under the circumstances, we conclude that the agent has done nothing wrong, civilly or criminally. His behavior has shown all the respect for the rights of others that we demand. Accidents happen that are no one's fault. Similarly, an agent who harms another on purpose is more blameworthy and deserves more punishment than an agent who causes precisely the same harm, but does so unaware that his unreasonable conduct was placing the victim at substantial risk of incurring that harm. The disregard of the former for the rights of his victims is total; the disregard of the latter is serious, but less so. Mens rea is crucial to defining fault and justifying punishment.
Over the centuries, the criminal law has developed a very large number of mens rea terms to mark such differences in culpability. Modern codes have attempted to streamline the mens rea vocabulary. The Model Penal Code, for example, has consolidated mens rea to four terms. (69) Nevertheless, the common law process of interpretation continues as courts struggle to find more accurate methods to evaluate blameworthiness.
With rare exception, mens rea terms, such as intent or knowledge, have their ordinary, non-technical meanings. For example, intent does not require any level of commitment to the agent's goal or any degree of moral evaluation. (70) Intent simply means that the agent did something on purpose. Even where amens rea term is legal jargon, such as "recklessness," its criteria--conscious awareness of a substantial and unjustifiable risk--have traditional meanings. To determine if mental disorder negates mens rea, one must simply ask, using straightforward common sense to provide an answer, if the defendant's disordered mental state actually indicates that mens rea was not formed on the occasion.
Doctrines that permit defendants to present mental disorder evidence to negate mens rea are often misleadingly termed "diminished capacity," suggesting that these doctrines are some kind of mitigation or partial excuse. This is incorrect. They refer to a straightforward denial of a requisite element, akin to a denial that one acted or to a mistake of fact. (71) They are not a lesser form of the insanity defense. The failure to recognize this clear distinction often produces faulty reasoning about whether a defendant should be permitted to introduce mental disorder evidence to negate mens rea because courts wrongly believe the defendant is requesting the court to create a "mini" insanity defense. (72)
Mental disorders relevant to mens rea most frequently produce disordered cognition, such as hallucinations or delusions, or untoward, sometimes strong, desires, such as the desire to have sexual relations with minors or the desire to set fires or to take controlled substances. In other words, mental disorder produces crazy desires or crazy beliefs about reality, but it virtually never prevents a defendant from meeting the law's criteria for intention, knowledge, conscious awareness, and other mens rea terms. (73)
Likewise, mental disorder seldom disables a defendant from having the capacity to form amens rea. (74) Modern inquiries into state of mind, both academic and judicial, seem obsessed with the vexed question of whether a defendant had the capacity to form mens rea, but either a defendant had the requisite mens rea or he did not. Mental disorder may in some cases demonstrate that the defendant did not form the mens rea at the time of the crime. Not having amens rea or having a mental state inconsistent with the requisite mens rea does not mean, however, that someone was incapable of forming it. If an agent lacks the capacity to do something, it follows that the agent did not do it in fact. Thus, evidence about the defendant's capacity to form a mens rea is logically and factually relevant to whether it was actually formed.
Asking about a defendant's capacity to form a mental state never provides better information than inquiring directly whether the mens rea was formed in fact, which is the ultimate legal question. Resolving questions about capacity requires a counterfactual inquiry that we lack the clinical and scientific resources to answer. When an expert testifies that a defendant lacked the capacity to form amens rea, that opinion seldom has a clinical or scientific basis. It was precisely these types of difficulties that led California to bar testimony about the defendant's capacity to form a mens rea, although it did permit testimony about whether the mental state was formed in fact. (75)
Consider the Model Penal Code's example of a hallucinating killer who strangles a victim believing that he is squeezing a lemon. (76) Believing that you are squeezing a lemon is flatly inconsistent with believing that you are squeezing someone's throat for the purpose of killing the victim. What does it mean to ask whether such a person had the capacity to form the intent to kill? How do we interpret this question?
One possibility is that we are asking whether the person could have formed an intent to kill if he believed that he was squeezing a person's throat--whether, that is, he had the general capacity to form an intent to kill a person. This requires a speculative answer, but the answer is probably "yes," because most people have the general capacity to form all species of intents, including an intent to kill.
The second possible interpretation is that we are asking whether at the precise moment that a person believes he is squeezing a lemon, he is also capable of forming an intent to kill the object he is squeezing. The answer to this second question is "no," because one cannot at precisely the same moment form two different and inconsistent mental states. This is tautologically and trivially true. But this interpretation shows that we are not really considering the defendant's capacities at all. The reason we know that he "lacked the capacity" to form the intent to kill at that precise moment is because he in fact formed another mental state. Our knowledge of this temporally specific form of "incapacity" is doing no explanatory work. We conclude that incapacity existed because we know ex post that another mental state was in fact formed.
So far, the discussion of capacity has assumed that we incontrovertibly know what mental state the defendant in fact formed. In the real world of criminal law, however, mental state must be proved by the prosecution, and is often countered by defense evidence. To continue the lemon example, imagine that there was good evidence to suggest that the defendant sporadically hallucinated that non-lemons were in fact lemons, but it is not clear whether he was suffering from that hallucination when he strangled his victim. He claims that he was, but there was also evidence of bad blood between him and the victim. (77) Perhaps he is lying, or he is so distraught about committing homicide that he has unwittingly and incorrectly convinced himself that he was hallucinating.
We can confidently conclude that he probably lacked the capacity to believe that the victim was not the small yellow citrus fruit only if we are equally confident that he almost always hallucinates that people are lemons. Again, our conclusion about capacity would be based on what mental states had been formed in fact rather than based on our direct and independent evidence about the person's capacities. The mental states of people with mental disorder, like those of people without disorder, are often variable, however, and speculation about capacity on a particular occasion will be of little help.
For all of these reasons, evidence of mental disorder allegedly relevant to a person's capacity to form a mental state will almost never help resolve whether that state was formed in fact.
The examples of Daniel M'Naghten and Andrea Yates will help demonstrate that even the most delusional or hallucinating person can form the requisite mental state. M'Naghten delusionally believed that there was a conspiratorial Tory plot to kill him, and formed a preemptive plan to kill the Tory Prime Minister, Robert Peel. (78) When he shot and killed Peel's secretary, Drummond, believing the secretary was Peel, he surely intended to kill a person. (79) Likewise, Andrea Yates believed that unless she killed her children, they would become corrupt and would be tormented by Satan for eternity. (80) She therefore decided to kill her children. (81) She knew they were human beings and that human beings are killed by drowning. Ms. Yates surely intended to kill the five children when she drowned them in the bathtub. Likewise, a person suffering from auditory hallucinations who hears God's voice command him to kill surely forms the intention to kill when he kills in response to the hallucinated command.
Admittedly, on rare occasions, psychotic mentation is genuinely inconsistent with the formation of mens rea. In a well-known California case, (82) the defendant, Wetmore, was caught in the victim's apartment under conditions suggesting that he intended to steal the victim's property. Charged with burglary, the defendant claimed that he delusionally believed that the apartment and the property belonged to him. (83) If he told the truth, he did not intend to enter the apartment of another or to commit the felony of larceny, the elements of which include intentionally taking and carrying away the property of another.
Note that even if mental disorder does negate subjective mental states such as purpose, intention, knowledge, or conscious awareness of risk, it would never negate the objective negligence standard. The person with mental disorder who is unaware of a risk that a reasonable person should be aware of is by definition unreasonable. Even the Model Penal Code, which individualizes the negligence inquiry somewhat by requiting the decision maker to consider the behavior of a "reasonable person ... in the actor's situation" before making a finding of negligence, (84) would not go so far as to consider mental disorder--irrational behavior--as part of the "situation." The Model Penal Code never gives a clear definition of the "situation," but it does make clear that it wishes to avoid complete subjectivization of the reasonable person standard. (85) To assess reasonableness from the standpoint of the "reasonable irrational" person would deprive the negligence standard of all objectivity. (86) Consider the lemon example again. The killer is at least guilty of negligent homicide because a reasonable person should nave been aware of a substantial and unjustifiable risk that the object being squeezed was a person's throat and not a...
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