IX. American Medical Association

Consistent with developments in Idaho, Montana and Utah, the American Medical Association supports the abolition of the traditional insanity defense and adoption of the mens rea insanity defense. The mens rea insanity defense was recommended in a report of the American Medical Association Committee On Medicolegal Problems (with which the AMA Board of Trustees agreed). The report was published in the June 8, 1984 Journal of the American Medical Association. It included recommendations that the AMA House of Delegates approve four policy positions. The first one listed is relevant to our discussion here. In effect, it is the mens rea insanity defense. It is as follows: "That the AMA supports, in principle, the abolition of the special defense of insanity in criminal trials, and its replacement by statutes providing for acquittal when the defendant, as a result of mental disease or defect, lacked the state of mind (mens rea) required as an element of the offense charged."²²⁸

In a 1985 Joint Statement by the American Medical Association and the American Psychiatric Association regarding the insanity defense, comparing position statements of the two Associations, it is stated (with reference to the issue relevant here): "The AMA by contrast urged that the defense be abolished and that the issue of the defendant’s mental status be relevant only to the issue of criminal intent, which is that element of all major crimes referred to in legal terms of mens rea, ...."²²⁹ Again, this is, in effect, the mens rea insanity defense.

In a telephone call to the Policy Department of the American Medical Association in Chicago, I asked for the most recent policy statement on this subject. In answer to that request, in an envelope postmarked June 23, 1998 I received a document entitled "Policies of House of Delegates - I - 97." Included under a heading in that document entitled "H-80.997 The Insanity Defense in Criminal Trials and Limitations of Psychiatric Testimony" are the same four policy positions as listed in the report published in the Journal of the American Medical Association on June 8, 1984. This includes the first policy position (in effect the mens rea insanity defense) as previously quoted (see supra text accompanying note 228). (There is a 1993 date at the end of the document indicating that the policy was "reaffirmed" in that year.) The foregoing discussion indicates that the American Medical Association is currently in favor of the mens rea insanity defense.

Many of the comments in Section VIII of this article regarding the mens rea insanity defense adopted in Idaho, Montana and Utah are applicable to the position of the American Medical Association. Thus, in this section we shall follow the sequence of the discussion in Section VIII, which in turn refers back to the comments in Phase One of Section VI, Federal (i.e. the mens rea insanity defense recommendation by the United States Justice Department for the federal system, which was not adopted).

My 1993 Western State University Law Review article summarizes the manner in which the erosion problems with the mens rea model generally (for example in California) and the mens rea insanity defense in Idaho, Montana and Utah are similar.²³⁰ See also the 1995 Supreme Court of Utah opinion, State v. Herrera, where the court refers to my 1987 Pepperdine article, discussing the mens rea model and my reference to the fact that the American Medical Association had adopted the Idaho, Montana and Utah concept.²³¹

In the paragraphs in the text of Section VIII in this article, between the insertion of footnote numbers 198 and 199, there are references to potential defense oriented interpretations of the mens rea insanity defense in Idaho, Montana and Utah. Such problems apply equally to the AMA position, since that organization approves the mens rea insanity defense approach. They include the point that there is no limiting legal framework of a traditional insanity defense (involving knowledge and control). Thus, arguably defense expert witnesses, under guidance of defense attorneys, can testify directly on mens rea in a more expanded manner, unfettered by such a legal framework.

There are also references to the similarity of the language in the mens rea insanity defense (which has been approved by AMA) to the defense oriented concepts, A.L.I. Section 4.02(1) and American Bar Association Criminal Justice Mental Health Standard 7-6.2. This gives defense attorneys the opportunity to argue that the mens rea insanity defense is more defense oriented than the position stated by some of its proponents. For example, some commentators actually desire the mens rea insanity defense because they believe it would allow psychiatrists and psychologists to present complete analyses to the jury without the constraints of a traditional insanity defense.²³² Furthermore, it is noted that in the Korell opinion in 1984 the Supreme Court of Montana recognized that the mens rea insanity defense may have opened wider the admissibility of mental disability evidence on mens rea than indicated by its proponents.²³³

All of these defense and treatment oriented interpretations of the mens rea insanity defense are consistent with the point that over the years some mental health professionals ( presumably including at least some psychiatrists and members of the American Medical Association) would welcome the adoption of the mens rea insanity defense (as has been done in Idaho, Montana and Utah). Also, it may partially explain why the American Medical Association is still in favor of that approach. This goes all the way back at least as far as 1915 to the early recommendation by a committee of the American Institute of Criminal Law and Criminology to abolish the traditional insanity defense and focus directly on mens rea. At that time some of those in favor of that approach welcomed it as a way liberating the testimony of mental health professionals from the constraints of the legal framework of traditional insanity defenses and thus increasing the involvement of mental health professionals In spite of this history, in more recent years the proponents of the mens rea insanity defense (including representatives of the United States Justice Department) have taken the position that it would decrease the involvement of mental health professionals, including psychiatrists, in criminal law matters. (See supra notes 220-227 and accompanying text.)

To some extent this defense and treatment oriented approach is reflected in the AMA report published in Volume 251, Journal of the American Medical Association in June !984. For example at page 2976 of that issue of the Journal the report states: "Most significantly perhaps, abandonment of the moral pretense of the insanity defense in favor of a mens rea concept may lead to a more realistic appreciation of the relationship between mental impairment and criminal behavior." On the same page the report further states that some observers say that "this relationship extends far beyond its manifestation in the cases of those few offenders acquitted on the claims of insanity; recognition of a special defense applicable to these few detracts attention from the legitimate treatment needs of the many." The report then states: "Mens rea proposals seek to correct this myopic focus on the insanity defense by emphasizing consideration of mercy and appropriate treatment for all mentally disordered offenders." As previously indicated, this seems to be consistent with positions of mental health professionals (as far back as 1915) who say that adopting the mens rea insanity defense, and abandoning the traditional insanity defense and its legal framework, will be helpful to the defense and treatment oriented approach.

On the other hand, as earlier noted, Department of Justice representatives and others have taken the position that the mens rea insanity defense is "law and order" oriented and is a way to reduce admissibility of mental disability evidence.²³⁴ In fact, in the previously mentioned report of the AMA Committee On Medicolegal Problems, which at some points (as noted above) seems to view the mens rea insanity defense in a treatment and defense oriented manner, there are also comments regarding the "law and order" nature of the mens rea insanity defense. This includes the statement: "As a practical matter moreover, only those mental disorders that grossly and demonstrably impair perception or understanding of reality--those equivalent in severity to psychoses, as the APA Statement suggested-- would be exculpatory under the mens rea approach."²³⁵ Also, for example, in discussing the Department of Justice mens rea insanity defense proposal for the federal system (which was not adopted) the same AMA committee report states: "Under a statute like the 1982 proposal, mental illness would, in the vast majority of cases, be considered only at the sentencing stage as a mitigating factor."²³⁶

For all the reasons discussed throughout this article, I do not agree that the mens rea insanity defense is as law and order oriented as indicated in the comments in the foregoing paragraph. However, an important question here is as follows: Would not members of the AMA committee also be aware of the inaccuracy of such statements? Perhaps they cannot be blamed for parroting the law and order comments of the United States Justice Department representatives. In any event, were they arguably taking advantage of the law and order climate existing at that time in order to achieve their treatment and defense oriented goal of trying to abolish traditional insanity defenses (thus eliminating the legal framework involving knowledge and control concepts)? These questions are similar to those earlier asked regarding whether or not the legislatures in Idaho, Montana and Utah were also unduly influenced by this law and order rhetoric of the United States Department of Justice; and whether using such arguments met the hidden agendas of those who were treatment and defense oriented.²³⁷

Recommendations For American Medical Association

My recommendations for the American Medical Association involve suggested changes in policy regarding the issues under consideration here. Concepts in particular jurisdictions which have been the subject of earlier discussions (and related "Recommendations" as well as "Additional Considerations" involving such jurisdictions) should be considered in studying the policy issues. These include California (Section V), Federal (Section VI), Military (Section VII), and Idaho, Montana and Utah (Section VIII). As earlier noted these jurisdictions have been selected as examples for purposes of this study. Presumably other jurisdictions have variations of the same problems.

For the sake of this discussion we will focus on the Recommendations for Idaho, Montana and Utah, Section VIII (which in turn refer back to the other jurisdictions mentioned in the foregoing paragraph). In my judgment the American Medical Association (as well as the American Psychiatric Association) should consider adopting policies as follows: (1) adopt a M’Naghten traditional insanity defense; (2) adopt a strict mens rea concept for evidence admitted directly on mens rea (outside the insanity defense) which requires a severe mental disability demonstrating that the defendant completely lacked the mental capacity for the mens rea involved in the offense; and (3) the policy should make it clear that A.L.I. Model Penal Code Section 4.02(1) and A.B.A. Criminal Justice Mental Health Standard 7-6.2 are not the strict mens rea concept involved in (2) above.

It is noted that in the 1985 Joint Statement of the American Medical Association and the American Psychiatric Association Regarding the Insanity Defense there is a statement with reference to the testing of concepts in the "social laboratories" of various jurisdictions.²³⁸ It is recommended that in studies in such social laboratories consideration be given by the American Medical and American Psychiatric Associations to adopting the recommendations in the immediately foregoing paragraph.

Up To Table Of Contents

On To Section X: American Bar Association

Download this section in Microsoft Word

Notes

---

²²⁸ American Medical Association Report of the Board of Trustees, Insanity Defense in Criminal Trials and Limitation of Psychiatric Testimony, 251 JAMA 2967 (1984) [hereinafter AMA 1984].

²²⁹ American Psychiatric Association and American Medical Association Working Committee, Joint Statement of the American Medical Association and the American Psychiatric Association Regarding the Insanity Defense, 142 Am.J. Psychiatry 1135 (1985)[hereinafter AMA & APA 1985].

²³⁰ Huckabee 1993, supra note 1 at 452-58.

²³¹ State v. Herrara, 895 P.2d at 362, 365.

²³² Huckabee 1993, supra note 1 at 455-56.

²³³ See supra text accompanying footnote 210.

²³⁴ See supra point (4) in the third paragraph in Section VIII (Idaho, Montana and Utah); and text accompanying supra notes 211, 223,224 and 225.

²³⁵ AMA 1984, supra note 228 at 2976.

²³⁶ Id. at 2975.

²³⁷ See supra text accompanying notes 223-227.

²³⁸ A.M.A and A.P.A 1985, supra note 229 at 1135.