Session IV - Insanity by stariya


									                                                             Session IV

Editor’s Note

These materials have been edited by NSU. Three asterisks (***) indicates deletions in this
editing process. However, three periods [an ellipsis] within a quotation indicates a deletion in
the original.

In some cases footnotes have been deleted, but the original numbers have been retained.

Table of Cases and Materials

Ford v. Wainwright ..................................................................................................................................1

People v. Drew .........................................................................................................................................10

People v. Skinner .....................................................................................................................................20

American Psychiatric Association, “The Insanity Defense” ..................................................................28
                                    477 U.S. 399
                         Supreme Court of the United States
                         Alvin Bernard FORD, etc., Petitioner
           Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections.
                               Argued April 22, 1986.
                               Decided June 26, 1986.

Justice MARSHALL announced the judgment of the Court and delivered the opinion of the
Court with respect to Parts I and II and an opinion with respect to Parts III, IV, and V, in which
Justice BRENNAN, Justice BLACKMUN, and Justice STEVENS join.
For centuries no jurisdiction has countenanced the execution of the insane, yet this Court has
never decided whether the Constitution forbids the practice. Today we keep faith with our
common-law heritage in holding that it does.

Alvin Bernard Ford was convicted of murder in 1974 and sentenced to death. There is no
suggestion that he was incompetent at the time of his offense, at trial, or at sentencing. In early
1982, however, Ford began to manifest gradual changes in behavior. They began as an
occasional peculiar idea or confused perception, but became more serious over time. ***
Counsel for Ford asked a psychiatrist who had examined Ford earlier, Dr. Jamal Amin, to
continue seeing him and to recommend appropriate treatment. On the basis of roughly 14
months of evaluation, taped conversations between Ford and his attorneys, letters written by
Ford, interviews with Ford's acquaintances, and various medical records, Dr. Amin concluded
in 1983 that Ford suffered from "a severe, uncontrollable, mental disease which closely
resembles 'Paranoid Schizophrenia With Suicide Potential' "--a "major mental disorder ... severe
enough to substantially affect Mr. Ford's present ability to assist in the defense of his life."
Ford subsequently refused to see Dr. Amin again, believing him to have joined the conspiracy
against him, and Ford's counsel sought assistance from Dr. Harold Kaufman, who interviewed
Ford in November 1983. *** Dr. Kaufman concluded that Ford had no understanding of why
he was being executed, made no connection between the homicide of which he had been
convicted and the death penalty, and indeed sincerely believed that he would not be executed
because he owned the prisons and could control the Governor through mind waves. Dr.
Kaufman found that there was "no reasonable possibility that Mr. Ford was dissembling,
malingering or otherwise putting on a performance...." The following month, in an interview
with his attorneys, Ford regressed further into nearly complete incomprehensibility, speaking
only in a code characterized by intermittent use of the word "one," making statements such as
"Hands one, face one. Mafia one. God one, father one, Pope one. Pope one. Leader one."
Counsel for Ford invoked the procedures of Florida law governing the determination of
competency of a condemned inmate, Fla.Stat. § 922.07 (1985). Following the procedures set
forth in the statute, the Governor of Florida appointed a panel of three psychiatrists to evaluate
whether, under § 922.07(2), Ford had "the mental capacity to understand the nature of the death
penalty and the reasons why it was imposed upon him." At a single meeting, the three
psychiatrists together interviewed Ford for approximately 30 minutes. Each doctor then filed a
separate two- or three-page report with the Governor, to whom the statute delegates the final

decision. One doctor concluded that Ford suffered from "psychosis with paranoia" but had
"enough cognitive functioning to understand the nature and the effects of the death penalty, and
why it is to be imposed on him." Another found that, although Ford was "psychotic," he did
"know fully what can happen to him." The third concluded that Ford had a "severe
adaptational disorder," but did "comprehend his total situation including being sentenced to
death, and all of the implications of that penalty." He believed that Ford's disorder, "although
severe, seem[ed] contrived and recently learned." Thus, the interview produced three different
diagnoses, but accord on the question of sanity as defined by state law.
The Governor's decision was announced on April 30, 1984, when, without explanation or
statement, he signed a death warrant for Ford's execution. Ford's attorneys unsuccessfully
sought a hearing in state court to determine anew Ford's competency to suffer execution. Ford
v. State, 451 So.2d 471, 475 (Fla.1984). Counsel then filed a petition for habeas corpus in the
United States District Court for the Southern District of Florida, seeking an evidentiary hearing
on the question of Ford's sanity, proffering the conflicting findings of the Governor-appointed
commission and subsequent challenges to their methods by other psychiatrists. The District
Court denied the petition without a hearing. The Court of Appeals granted a certificate of
probable cause and stayed Ford's execution, Ford v. Strickland, 734 F.2d 538 (CA11 1984), and
we rejected the State's effort to vacate the stay of execution. Wainwright v. Ford, 467 U.S.
1220, 104 S.Ct. 3498, 82 L.Ed.2d 911 (1984). The Court of Appeals then addressed the merits
of Ford's claim and a divided panel affirmed the District Court's denial of the writ. 752 F.2d 526
(CA11 1985). This Court granted Ford's petition for certiorari in order to resolve the important
issue whether the Eighth Amendment prohibits the execution of the insane and, if so, whether
the District Court should have held a hearing on petitioner's claim. 474 U.S. 1019, 106 S.Ct.
566, 88 L.Ed.2d 552 (1985).
Since this Court last had occasion to consider the infliction of the death penalty upon the
insane, our interpretations of the Due Process Clause and the Eighth Amendment have evolved
substantially. *** Now that the Eighth Amendment has been recognized to affect significantly
both the procedural and the substantive aspects of the death penalty, the question of executing
the insane takes on a wholly different complexion. The adequacy of the procedures chosen by a
State to determine sanity, therefore, will depend upon an issue that this Court has never
addressed: whether the Constitution places a substantive restriction on the State's power to take
the life of an insane prisoner.
There is now little room for doubt that the Eighth Amendment's ban on cruel and unusual
punishment embraces, at a minimum, those modes or acts of punishment that had been
considered cruel and unusual at the time that the Bill of Rights was adopted. "Although the
Framers may have intended the Eighth Amendment to go beyond the scope of its English
counterpart, their use of the language of the English Bill of Rights is convincing proof that they
intended to provide at least the same protection...." Solem v. Helm, supra, 463 U.S., at 286, 103
S.Ct., at 3007.
Moreover, the Eighth Amendment's proscriptions are not limited to those practices condemned
by the common law in 1789. Not bound by the sparing humanitarian concessions of our
forebears, the Amendment also recognizes the "evolving standards of decency that mark the
progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d
630 (1958) (plurality opinion). In addition to considering the barbarous methods generally
outlawed in the 18th century, therefore, this Court takes into account objective evidence of

contemporary values before determining whether a particular punishment comports with the
fundamental human dignity that the Amendment protects. See Coker v. Georgia, 433 U.S. 584,
597, 97 S.Ct. 2861, 2868-2869, 53 L.Ed.2d 982 (1977) (plurality opinion).
We begin, then, with the common law. The bar against executing a prisoner who has lost his
sanity bears impressive historical credentials; the practice consistently has been branded
"savage and inhuman." 4 W. Blackstone, Commentaries * 24-* 25 (hereinafter Blackstone).
Blackstone explained:
"[I]diots and lunatics are not chargeable for their own acts, if committed when under these
incapacities: no, not even for treason itself. Also, if a man in his sound memory commits a
capital offence, and before arraignment for it, he becomes mad, he ought not to be arraigned for
it: because he is not able to plead to it with that advice and caution that he ought. And if, after
he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his
defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment
shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution
shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of
sound memory, he might have alleged something in stay of judgment or execution." Ibid.
(footnotes omitted).
Sir Edward Coke had earlier expressed the same view of the common law of England: "[B]y
intendment of Law the execution of the offender is for example, ... but so it is not when a mad
man is executed, but should be a miserable spectacle, both against Law, and of extream
inhumanity and cruelty, and can be no example to others." 3 E. Coke, Institutes 6 (6th ed. 1680)
(hereinafter Coke). As is often true of common-law principles, see O. Holmes, The Common
Law 5 (1881), the reasons for the rule are less sure and less uniform than the rule itself. One
explanation is that the execution of an insane person simply offends humanity, Coke 6; another,
that it provides no example to others and thus contributes nothing to whatever deterrence value
is intended to be served by capital punishment. Ibid. Other commentators postulate religious
underpinnings: that it is uncharitable to dispatch an offender "into another world, when he is not
of a capacity to fit himself for it," Hawles 477. It is also said that execution serves no purpose in
these cases because madness is its own punishment: furiosus solo furore punitur. Blackstone *
395. More recent commentators opine that the community's quest for "retribution"--the need to
offset a criminal act by a punishment of equivalent "moral quality"--is not served by execution
of an insane person, which has a "lesser value" than that of the crime for which he is to be
punished. Hazard & Louisell, Death, the State, and the Insane: Stay of Execution, 9 UCLA
L.Rev. 381, 387 (1962). Unanimity of rationale, therefore, we do not find. "But whatever the
reason of the law is, it is plain the law is so." Hawles 477. We know of virtually no authority
condoning the execution of the insane at English common law.
Further indications suggest that this solid proscription was carried to America, where it was
early observed that "the judge is bound" to stay the execution upon insanity of the prisoner. 1 J.
Chitty, A Practical Treatise on the Criminal Law * 761; see 1 F. Wharton, A Treatise on
Criminal Law § 59 (8th ed. 1880).
This ancestral legacy has not outlived its time. Today, no State in the Union permits the
execution of the insane. [FN2] It is clear that the ancient and humane limitation upon the State's
ability to execute its sentences has as firm a hold upon the jurisprudence of today as it had
centuries ago in England. The various reasons put forth in support of the common-law

restriction have no less logical, moral, and practical force than they did when first voiced. For
today, no less than before, we may seriously question the retributive value of executing a
person who has no comprehension of why he has been singled out and stripped of his
fundamental right to life. Similarly, the natural abhorrence civilized societies feel at killing one
who has no capacity to come to grips with his own conscience or deity is still vivid today. And
the intuition that such an execution simply offends humanity is evidently shared across this
Nation. Faced with such widespread evidence of a restriction upon sovereign power, this Court
is compelled to conclude that the Eighth Amendment prohibits a State from carrying out a
sentence of death upon a prisoner who is insane. Whether its aim be to protect the condemned
from fear and pain without comfort of understanding, or to protect the dignity of society itself
from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the
Eighth Amendment.

FN2. Of the 50 States, 41 have a death penalty or statutes governing execution procedures. Of
those, 26 have statutes explicitly requiring the suspension of the execution of a prisoner who
meets the legal test for incompetence. Others have adopted the common-law rule by judicial
decision. Still others have more discretionary statutory procedures providing for the suspension
of sentence and transfer to mental facilities for convicted prisoners who have developed mental
illness. The remaining four States having a death penalty have no specific procedure governing
insanity, but have not repudiated the common-law rule.
[1] The Eighth Amendment prohibits the State from inflicting the penalty of death upon a
prisoner who is insane. *** The question before us is whether the District Court was under an
obligation to hold an evidentiary hearing on the question of Ford's sanity. In answering that
question, we bear in mind that, while the underlying social values encompassed by the Eighth
Amendment are rooted in historical traditions, the manner in which our judicial system protects
those values is purely a matter of contemporary law. Once a substantive right or restriction is
recognized in the Constitution, therefore, its enforcement is in no way confined to the
rudimentary process deemed adequate in ages past.
[2]*** The habeas corpus statute, following this Court's decision in Townsend, provides that, in
general, "a determination after a hearing on the merits of a factual issue, made by a State court
of competent jurisdiction ..., shall be presumed to be correct," and an evidentiary hearing not
required. 28 U.S.C. § 2254(d). In this case, it is clear that no state court has issued any
determination to which that presumption of correctness could be said to attach; indeed, no court
played any role in the rejection of petitioner's claim of insanity. ***
But our examination does not stop there. For even when a state court has rendered judgment, a
federal court is obliged to hold an evidentiary hearing on habeas corpus if, among other factors,
"the factfinding procedure employed by the State court was not adequate to afford a full and
fair hearing," § 2254(d)(2); or "the material facts were not adequately developed at the State
court hearing," § 2254(d)(3); or "the applicant did not receive a full, fair, and adequate hearing
in the State court proceeding." § 2254(d)(6). If federal factfinding is to be avoided, then, in
addition to providing a court judgment on the constitutional question, the State must also ensure
that its procedures are adequate for the purpose of finding the facts.


*** In capital proceedings generally, this Court has demanded that factfinding procedures
aspire to a heightened standard of reliability. This especial concern is a natural consequence of
the knowledge that execution is the most irremediable and unfathomable of penalties; that death
is different. Although the condemned prisoner does not enjoy the same presumptions accorded
a defendant who has yet to be convicted or sentenced, he has not lost the protection of the
Constitution altogether; if the Constitution renders the fact or timing of his execution contingent
upon establishment of a further fact, then that fact must be determined with the high regard for
truth that befits a decision affecting the life or death of a human being. Thus, the ascertainment
of a prisoner's sanity as a predicate to lawful execution calls for no less stringent standards than
those demanded in any other aspect of a capital proceeding. Indeed, a particularly acute need
for guarding against error inheres in a determination that "in the present state of the mental
sciences is at best a hazardous guess however conscientious." Solesbee v. Balkcom, 339 U.S., at
23, 70 S.Ct., at 464 (Frankfurter, J., dissenting). That need is greater still because the ultimate
decision will turn on the finding of a single fact, not on a range of equitable considerations. In
light of these concerns, the procedures employed in petitioner's case do not fare well.
[3]*** Petitioner received the statutory process. The Governor selected three psychiatrists, who
together interviewed Ford for a total of 30 minutes, in the presence of eight other people,
including Ford's counsel, the State's attorneys, and correctional officials. The Governor's order
specifically directed that the attorneys should not participate in the examination in any
adversarial manner. This order was consistent with the present Governor's "publicly announced
policy of excluding all advocacy on the part of the condemned from the process of determining
whether a person under a sentence of death is insane.” Goode v. Wainwright, 448 So.2d 999,
1001 (Fla.1984).
After submission of the reports of the three examining psychiatrists, reaching conflicting
diagnoses but agreeing on the ultimate issue of competency, Ford's counsel attempted to submit
to the Governor some other written materials, including the reports of the two other
psychiatrists who had examined Ford at greater length, one of whom had concluded that the
prisoner was not competent to suffer execution. The Governor's office refused to inform
counsel whether the submission would be considered. The Governor subsequently issued his
decision in the form of a death warrant. That this most cursory form of procedural review fails
to achieve even the minimal degree of reliability required for the protection of any
constitutional interest, and thus falls short of adequacy under Townsend, is self-evident.
The first deficiency in Florida's procedure lies in its failure to include the prisoner in the truth-
seeking process. Notwithstanding this Court's longstanding pronouncement that "[t]he
fundamental requisite of due process of law is the opportunity to be heard," Grannis v. Ordean,
234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914), state practice does not permit any
material relevant to the ultimate decision to be submitted on behalf of the prisoner facing
execution.***. And we have forbidden States to limit the capital defendant's submission of
relevant evidence in mitigation of the sentence. Skipper v. South Carolina, 476 U.S. 1, 8, 106
S.Ct. 1669, ----, It would be odd were we now to abandon our insistence upon unfettered
presentation of relevant information, before the final fact antecedent to execution has been
Rather, consistent with the heightened concern for fairness and accuracy that has characterized

our review of the process requisite to the taking of a human life, we believe that any procedure
that precludes the prisoner or his counsel from presenting material relevant to his sanity or bars
consideration of that material by the factfinder is necessarily inadequate. *** The same holds
true after conviction; without any adversarial assistance from the prisoner's representative--
especially when the psychiatric opinion he proffers is based on much more extensive evaluation
than that of the state-appointed commission--the factfinder loses the substantial benefit of
potentially probative information. The result is a much greater likelihood of an erroneous
A related flaw in the Florida procedure is the denial of any opportunity to challenge or impeach
the state-appointed psychiatrists' opinions. "[C]ross-examination ... is beyond any doubt the
greatest legal engine ever invented for the discovery of truth." 5 J. Wigmore, Evidence § 1367
(J. Chadbourn rev. 1974). Cross-examination of the psychiatrists, or perhaps a less formal
equivalent, would contribute markedly to the process of seeking truth in sanity disputes by
bringing to light the bases for each expert's beliefs, the precise factors underlying those beliefs,
any history of error or caprice of the examiner, any personal bias with respect to the issue of
capital punishment, the expert's degree of certainty about his or her own conclusions, and the
precise meaning of ambiguous words used in the report. Without some questioning of the
experts concerning their technical conclusions, a factfinder simply cannot be expected to
evaluate the various opinions, particularly when they are themselves inconsistent. The failure of
the Florida procedure to afford the prisoner's representative any opportunity to clarify or
challenge the state experts' opinions or methods creates a significant possibility that the ultimate
decision made in reliance on those experts will be distorted. [FN3]

FN3. The adequacy of the factfinding procedures is further called into question by the cursory
nature of the underlying psychiatric examination itself. While this Court does not purport to set
substantive guidelines for the development of expert psychiatric opinion, cf. Barefoot v. Estelle,
463 U.S. 880, 903, 103 S.Ct. 3383, 3399-3400, 77 L.Ed.2d 1090 (1983), we can say that the
goal of reliability is unlikely to be served by a single group interview, with no provision for the
exercise of the psychiatrists' professional judgment regarding the possible need for different or
more comprehensive evaluative techniques. The inconsistency and vagueness of the
conclusions reached by the three examining psychiatrists in this case attest to the dubious value
of such an examination.
Perhaps the most striking defect in the procedures of Fla.Stat. § 922.07 (1985 and Supp.1986),
as noted earlier, is the State's placement of the decision wholly within the executive branch.
Under this procedure, the person who appoints the experts and ultimately decides whether the
State will be able to carry out the sentence that it has long sought is the Governor, whose
subordinates have been responsible for initiating every stage of the prosecution of the
condemned from arrest through sentencing. The commander of the State's corps of prosecutors
cannot be said to have the neutrality that is necessary for reliability in the factfinding
proceeding. *** In no other circumstance of which we are aware is the vindication of a
constitutional right entrusted to the unreviewable discretion of an administrative tribunal.
Having identified various failings of the Florida scheme, we must conclude that the State's
procedures for determining sanity are inadequate to preclude federal redetermination of the

constitutional issue. We do not here suggest that only a full trial on the issue of sanity will
suffice to protect the federal interests; we leave to the State the task of developing appropriate
ways to enforce the constitutional restriction upon its execution of sentences. It may be that
some high threshold showing on behalf of the prisoner will be found a necessary means to
control the number of nonmeritorious or repetitive claims of insanity. Other legitimate
pragmatic considerations may also supply the boundaries of the procedural safeguards that
feasibly can be provided.

Yet the lodestar of any effort to devise a procedure must be the overriding dual imperative of
providing redress for those with substantial claims and of encouraging accuracy in the
factfinding determination. The stakes are high, and the "evidence" will always be imprecise. It
is all the more important that the adversary presentation of relevant information be as
unrestricted as possible. Also essential is that the manner of selecting and using the experts
responsible for producing that "evidence" be conducive to the formation of neutral, sound, and
professional judgments as to the prisoner's ability to comprehend the nature of the penalty.
Fidelity to these principles is the solemn obligation of a civilized society.
Today we have explicitly recognized in our law a principle that has long resided there. It is no
less abhorrent today than it has been for centuries to exact in penance the life of one whose
mental illness prevents him from comprehending the reasons for the penalty or its implications.
In light of the clear need for trustworthiness in any factual finding that will prevent or permit
the carrying out of an execution, we hold that Fla.Stat. § 922.07 (1985 and Supp.1986) provides
inadequate assurances of accuracy to satisfy the requirements of Townsend v. Sain, 372 U.S.
293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Having been denied a factfinding procedure "adequate
to afford a full and fair hearing" on the critical issue, 28 U.S.C. § 2254(d)(2), petitioner is
entitled to an evidentiary hearing in the District Court, de novo, on the question of his
competence to be executed. Townsend v. Sain, supra, at 312, 83 S.Ct., at 756-757.
The judgment of the Court of Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.


Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
The Court today holds that the Eighth Amendment prohibits a State from carrying out a lawfully
imposed sentence of death upon a person who is currently insane. This holding is based almost
entirely on two unremarkable observations. First, the Court states that it "know[s] of virtually no
authority condoning the execution of the insane at English common law." Ante, at 2601. Second,
it notes that "[t]oday, no State in the Union permits the execution of the insane.” Ibid. Armed
with these facts, and shielded by the claim that it is simply "keep[ing] faith with our common-
law heritage," ante, at 2598, the Court proceeds to cast aside settled precedent and to
significantly alter both the common-law and current practice of not executing the insane. It
manages this feat by carefully ignoring the fact that the Florida scheme it finds unconstitutional,
in which the Governor is assigned the ultimate responsibility of deciding whether a condemned
prisoner is currently insane, is fully consistent with the "common-law heritage" and current
practice on which the Court purports to rely.
The Court places great weight on the "impressive historical credentials" of the common-law bar

against executing a prisoner who has lost his sanity. Ante, at 2600-2601. What it fails to mention,
however, is the equally important and unchallenged fact that at common law it was the executive
who passed upon the sanity of the condemned. See 1 N. Walker, Crime and Insanity in England
194-203 (1968). So when the Court today creates a constitutional right to a determination of
sanity outside of the executive branch, it does so not in keeping with but at the expense of "our
common-law heritage."
In Solesbee v. Balkcom, 339 U.S. 9, 70 S.Ct. 457, 94 L.Ed. 604 (1950), a condemned prisoner
claimed that he had a constitutional right to a judicial determination of his sanity. There, as here,
the State did not approve the execution of insane persons and vested in the Governor the
responsibility for determining, with the aid of experts, the sanity vel non of persons sentenced to
death. In rejecting the prisoner's claim, this Court stated:
"Postponement of execution because of insanity bears a close affinity not to trial for a crime but
rather to reprieves of sentences in general. The power to reprieve has usually sprung from the
same source as the power to pardon. Power of executive clemency in this country undoubtedly
derived from the practice as it had existed in England. Such power has traditionally rested in
governors or the President, although some of that power is often delegated to agencies such as
pardon or parole boards. Seldom, if ever, has this power of executive clemency been subjected to
review by the courts." Id., at 11-12, 70 S.Ct., at 458.

Petitioner makes the alternative argument, not reached by the Court, that even if the Eighth
Amendment does not prohibit execution of the insane, Florida's decision to bar such executions
creates a right in condemned persons to trial-type procedures to determine sanity. Here, too,
Solesbee is instructive:
"Recently we have pointed out the necessary and inherent differences between trial procedures
and post-conviction procedures such as sentencing. Williams v. New York, 337 U.S. 241, 69 S.Ct.
1079, 93 L.Ed. 1337. In that case we emphasized that certain trial procedure safeguards are not
applicable to the process of sentencing. This principle applies even more forcefully to an effort to
transplant every trial safeguard to a determination of sanity after conviction. As was pointed out
in [Nobles v. Georgia, 168 U.S. 398, 18 S.Ct. 87, 42 L.Ed. 515 (1897) ], to require judicial
review every time a convicted defendant suggested insanity would make the possibility of
carrying out a sentence depend upon 'fecundity in making suggestion after suggestion of
insanity.' Nobles v. Georgia, supra, at 405-406. To protect itself society must have power to try,
convict, and execute sentences. Our legal system demands that this governmental duty be
performed with scrupulous fairness to the accused. We cannot say that it offends due process to
leave the question of a convicted person's sanity to the solemn responsibility of a state's highest
executive with authority to invoke the aid of the most skillful class of experts on the crucial
questions involved." 339 U.S., at 12-13, 70 S.Ct., at 459.
Even the sole dissenter in Solesbee, Justice Frankfurter, agreed that if the Constitution afforded
condemned prisoners no substantive right not to be executed when insane, then the State would
be free to place on the Governor the responsibility for determining sanity. Id., at 15, 70 S.Ct., at
Petitioner argues that Solesbee is no longer controlling because it was decided "at a time when
due process analysis still turned on the right-privilege distinction." Brief for Petitioner 8. But as
petitioner concedes, his due process claim turns on a showing that the Florida statute at issue
here created an individual right not to be executed while insane. Even a cursory reading of the
statute reveals that the only right it creates in a condemned prisoner is to inform the Governor

that the prisoner may be insane. Fla.Stat. § 922.07(1) (1985). The only legitimate expectation it
creates is that "[i]f the Governor decides that the convicted person does not have the mental
capacity to understand the nature of the death penalty and why it was imposed on him, he shall
have him committed to a Department of Corrections mental health treatment facility." §
922.07(3) (Supp.1986) (emphasis added I do not think this state of the law requires the
conclusion that Florida has granted petitioner the sort of entitlement that gives rise to the
procedural protections for which he contends.
In any event, I see no reason to reject the Solesbee Court's conclusion that wholly executive
procedures can satisfy due process in the context of a post-trial, postappeal, postcollateral-attack
challenge to a State's effort to carry out a lawfully imposed sentence. Creating a constitutional
right to a judicial determination of sanity before that sentence may be carried out, whether
through the Eighth Amendment or the Due Process Clause, needlessly complicates and
postpones still further any finality in this area of the law. The defendant has already had a full
trial on the issue of guilt, and a trial on the issue of penalty; the requirement of still a third
adjudication offers an invitation to those who have nothing to lose by accepting it to advance
entirely spurious claims of insanity. *** Since no State sanctions execution of the insane, the
real battle being fought in this case is over what procedures must accompany the inquiry into
sanity. The Court reaches the result it does by examining the common law, creating a
constitutional right that no State seeks to violate, and then concluding that the common-law
procedures are inadequate to protect the newly created but common-law based right. I find it
unnecessary to "constitutionalize" the already uniform view that the insane should not be
executed, and inappropriate to "selectively incorporate" the common-law practice. I therefore

                                        583 P.2d 1318
                              Supreme Court of California, In Bank.
                             The PEOPLE, Plaintiff and Respondent,
                           Ronald Jay DREW, Defendant and Appellant.
                                        Sept. 26, 1978.

Mosk, J., filed a concurring opinion.
Richardson, J., filed a dissenting opinion in which Manuel and Clark, JJ., joined.
Clark, J., filed a dissenting opinion.

TOBRINER, Justice.
For over a century California has followed the M'Naghten test [FN2] to define the defenses of
insanity and idiocy. The deficiencies of that test have long been apparent, **1319 and judicial
attempts to reinterpret or evade the limitations of M'Naghten have proven inadequate. We shall
explain why we have concluded that we should discard the M'Naghten language, and update the
California test of mental incapacity as a criminal defense by adopting the test proposed ***276
by the American Law Institute and followed by the federal judiciary and the courts of 15 states.

   FN2. "(T)o establish a defense on the ground of insanity, it must be clearly proved that, at the time of
   the committing the act, the party accused was labouring under such a defect of reason, from disease
   of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that
   he did not know he was doing what was wrong." (M'Naghten's Case (1843) 10 Clark & Fin. 200, 210
   (8 Eng.Rep. 718, 722).)

*337 Understandably, in view of our past adherence to M'Naghten, neither the psychiatrists who
examined defendant nor the jury evaluated defendant's capacity in terms of the ALI test. Since
the evidentiary record indicates that defendant, a former mental patient with a history of
irrational assaultive behavior, lacked the capacity to conform his conduct to legal requirements,
we conclude that the court's failure to instruct the jury under the ALI test was prejudicial, and
therefore reverse the conviction.
Defendant Drew also contends that Evidence Code section 522, which requires a defendant to
prove insanity by a preponderance of the evidence, is unconstitutional. Controlling precedent in
the United States Supreme Court (see Patterson v. New York (1977) 432 U.S. 197, 97 S.Ct.
2319, 53 L.Ed.2d 281), and in this court (see People v. Miller (1972) 7 Cal.3d 562, 102
Cal.Rptr. 841, 498 P.2d 1089) mandates the rejection of this contention.
Finally, Drew argues that the record is insufficient to sustain the jury finding of sanity. We
conclude, however, that a jury instructed under the M'Naghten rule could reasonably find that
defendant failed to prove by a preponderance of the evidence that he was unaware of the
wrongfulness of his conduct. Thus Drew is not entitled to an order directing the trial court to
find him insane, but only to a new trial on the issue of sanity in which the jury is instructed
under the ALI test.

1. Statement of Facts.

[A defendant charged with battery on a peace officer and related offenses pled not guilty and not
guilty by reason of insanity.] ***
 ***Two court-appointed psychiatrists testified at the sanity trial. Dr. Otto Gericke, former
Medical Director at Patton State Hospital, *** described Drew's condition as one of latent
schizophrenia, characterized by repeated incidents of assaultive behavior and by conversing with
inanimate objects and nonexistent persons; this condition ***277 could be controlled by
medication but if left untreated would deteriorate to paranoid schizophrenia.
Relying upon his examinations and Drew's medical history at Patton State Hospital, Dr. Gericke
concluded that Drew was unable to appreciate the difference between right and wrong at the
time he attacked Officer Bonsell.
The second witness, Dr. Ethel Chapman, was a staff psychiatrist at Patton State Hospital. She
*** She concurred with Dr. Gericke's diagnosis of his condition, adding the observation that his
symptoms would be aggravated by the ingestion of alcohol, and joined in Dr. Gericke's
conclusion that Drew did not understand that his assault upon Officer Bonsell was wrong.
*339 The prosecution presented no evidence at the sanity trial. Nevertheless the jury, instructed
that the defendant has the burden of proving insanity under the M'Naghten test, found him sane.
The court thereupon sentenced Drew to prison on the battery conviction. He appeals from the
judgment of conviction.

2. This court should adopt the American Law Institute test, as stated in section 4.01, subpart (1)
of the Model Penal Code, to define the defense of insanity.

[1] The trial court instructed the jury that "Legal insanity . . . means a diseased or deranged
condition of the mind which makes a person incapable of knowing or understanding the nature
and quality of his act, or makes a person incapable of knowing or understanding that his act was

The purpose of a legal test for insanity is to identify those persons who, owing to mental
incapacity, should not be held criminally responsible for their conduct. The criminal law rests on
a postulate of free will that all persons of sound mind are presumed capable of conforming their
behavior to legal requirements and that when any such person freely chooses to violate the law,
he may justly be held responsible. (See Goldstein, The Insanity Defense (1967) pp. 9-10.) From
the earliest days of the common law, however, the courts have recognized that a few persons
lack the mental capacity to conform to the strictures of the law. Thus in 1582 William Lambart
of Lincoln's Inn wrote that "If . . . a mad man or a natural fool, or a lunatic in the time of his
lunacy, or a child who apparently had no knowledge of good or evil, do kill a man, this is no
felonious act . . . for they cannot be said to have any understanding will." (Lambart, Eirenarcha
(**1321 1582) Cat. 21.218. (Spelling modernized).) *340 The principle that mental incapacity
constitutes a defense to crime is today accepted in all American jurisdictions. (See Weihofen,
Mental Disorder as a Criminal Defense (1954) p. 51.)

The California Penal Code codifies the defense of mental incapacity. Section 20 states that "(i)n
every crime . . . there must exist a union . . . of act and intent." Section 21 provides as to persons
of sound mind "(t)he intent . . . is manifested by the circumstances connected ***278 with the
offense" and that "All persons are of sound mind who are neither idiots nor lunatics, nor affected

with insanity." Finally section 26 specifies that "All persons are capable of committing crimes
except those belonging to the following classes" and includes among those classes "Idiots" and
"Lunatics and insane persons." [FN6]

   FN6. Section 26 reads as follows:

   "All persons are capable of committing crimes except those belonging to the following classes:

   "One Children under the age of 14, in the absence of clear proof that at the time of committing the
   act charged against them, they knew its wrongfulness.

   "Two Idiots.

   "Three Lunatics and insane persons.

   "Four Persons who committed the act or made the omission charged under an ignorance or mistake
   of fact, which disproves any criminal intent.
   "Five Persons who committed the act charged without being conscious thereof.

   "Six Persons who committed the act or made the omission charged through misfortune or by
   accident, when it appears that there was no evil design, intention or culpable negligence.

   "Seven Persons (unless the crime be punishable with death) who committed the act or made the
   omission charged under threats or menaces sufficient to show that they had reasonable cause to and
   did believe their lives would be endangered if they refused."

   The term "lunatics" in subdivision three probably referred to persons who had lucid intervals; "insane
   person" to those who lacked lucid intervals. The cases do not distinguish between the two terms.

Although the Legislature has thus provided that "insanity" is a defense to a criminal charge, it
has never attempted to define that term. The task of describing the circumstances under which
mental incapacity will relieve a defendant of criminal responsibility has become the duty of the
Since People v. Coffman (1864) 24 Cal. 230, 235, the California courts have followed the
M'Naghten rule to define the defense of insanity. *** In 1843 Daniel M'Naghten, afflicted with
paranoia, attempted to assassinate the Prime Minister of England, and succeeded in killing the
Prime *341 Minister's secretary. M'Naghten's acquittal on grounds of insanity so disturbed
Queen Victoria that she summoned the House of Lords to obtain the opinion of the judges on the
law of insanity. The 15 judges of the common law courts were called in an extraordinary
session, "under a not too subtle atmosphere of pressure" (United States v. Freeman, supra, 357
F.2d 606, 617), to answer five hypothetical questions on the law of criminal responsibility.
In response to two of the questions propounded the judges stated that "to establish a defence on
the ground of insanity, it must be clearly proved that, at the time of the committing the act, the
party accused was labouring under such a defect of reason, from disease of the mind, as not to
know the nature and quality of the act he was doing; or, if he did know it, that he did not know
he was doing what was wrong." (M'Naghten's Case, Supra, 10 Clark & Fin. 200, 210 (8
Eng.Rep. 718, 722).) Although an advisory opinion, and thus most questionable authority (see 2
Stephen, History of the Criminal Law of England (1883) p. 153), this language became the basis

for the test of insanity in all American states except New Hampshire. (Weihofen, Mental
Disorder as a Criminal Defense, Supra, pp. 68-69.)
**1322 Despite its widespread acceptance, the deficiencies of M'Naghten have long been
apparent. Principal among these is the test's exclusive focus upon the cognitive capacity of the
defendant, an outgrowth of the then current psychological theory under which the mind was
divided into separate independent compartments, one of which could be diseased without
affecting the others. As explained by Judge Ely of the Ninth Circuit: "The M'Naghten rules
fruitlessly attempt to relieve from punishment only those mentally diseased persons who have
no cognitive capacity . . . . This formulation does ***279 not comport with modern medical
knowledge that an individual is a mentally complex being with varying degrees of awareness. It
also fails to attack the problem presented in a case wherein an accused may have understood his
actions but was incapable of controlling his behavior. Such a person has been allowed to remain
a danger to himself and to society whenever, under M'Naghten, he is imprisoned without being
afforded such treatment as may produce rehabilitation and is later, potentially recidivistic,
released." (Wade v. United States (9th Cir. 1970) 426 F.2d 64, 66-67.) (Fns. omitted.)

*342 M'Naghten's exclusive emphasis on cognition would be of little consequence if all serious
mental illness impaired the capacity of the affected person to know the nature and wrongfulness
of his action. Indeed, the early decision of People v. Hoin (1882) 62 Cal. 120, 123, in rejecting
the defense of "irresistible impulse," rested on this gratuitous but doubtful assumption. Current
psychiatric opinion, however, holds that mental illness often leaves the individual's intellectual
understanding relatively unimpaired, but so affects his emotions or reason that he is unable to
prevent himself from committing the act. (See United States v. Smith (6th Cir. 1968) 404 F.2d
720, 725.) "(I)nsanity does not only, or primarily, affect the cognitive or intellectual faculties,
but affects the whole personality of the patient, including both the will and the emotions. An
insane person may therefore often know the nature and quality of his act and that it is wrong
and forbidden by law, and yet commit it as a result of the mental disease." (Rep. Royal Com. on
Capital Punishment, 1949-1953, p. 80.)
The annals of this court are filled with illustrations of the above statement: the deluded
defendant in People v. Gorshen, supra, 51 Cal.2d 716, 336 P.2d 492, who believed he would be
possessed by devilish visions unless he killed his foreman; the schizophrenic boy in People v.
Wolff, supra, 61 Cal.2d 795, 40 Cal.Rptr. 271, 394 P.2d 959, who knew that killing his mother
was murder but was unable emotionally to control his conduct despite that knowledge; the
defendant in People v. Robles (1970) 2 Cal.3d 205, 85 Cal.Rptr. 166, 466 P.2d 710, suffering
from organic brain damage, who mutilated himself and killed others in sudden rages. To ask
whether such a person knows or understands that his act is "wrong" is to ask a question
irrelevant to the nature of his mental illness or to the degree of his criminal responsibility.
Secondly, "M'Naghten's single track emphasis on the cognitive aspect of the personality
recognizes no degrees of incapacity. Either the defendant knows right from wrong or he does
not . . . . But such a test is grossly unrealistic . . . . As the commentary to the American Law
Institute's Model Penal Code observes, 'The law must recognize that when there is no black and
white it must content itself with different shades of gray.' " (United States v. Freeman, supra,
357 F.2d 606, 618-619, quoting ALI, Model Pen.Code, Tent.Drafts, Nos. 1, 2, 3, and 4, p. 158.)
**1323 In short, M'Naghten purports to channel psychiatric testimony into the narrow issue of
cognitive capacity, an issue often unrelated to the *343 defendant's illness or crime. The
psychiatrist called as a witness faces a dilemma: either he can restrict his testimony to the
confines of M'Naghten, depriving the trier of fact of a full presentation of the defendant's

mental state or he can testify that the defendant cannot tell "right" from "wrong" when that is
not really his opinion because by so testifying he acquires the opportunity to put before the trier
of fact the reality of defendant's mental condition. *** Even if the psychiatrist is able to place
before the trier of fact a complete picture of the defendant's mental incapacity, that testimony
reaches the trier of fact weakened by cross-examination designed to show that defendant knew
right from wrong and limited by the M'Naghten instruction. As a result, conscientious juries
have often returned verdicts of sanity despite plain evidence of serious mental illness and
unanimous expert testimony that the defendant was insane.
Conscious of the inadequacies of the M'Naghten test, California decisions have modified that
test in two significant respects. First in People v. Wolff, supra, 61 Cal.2d 795, 40 Cal.Rptr. 271,
394 P.2d 959, we held that the mere capacity to verbalize socially acceptable answers to
questions did not prove sanity; the defendant must not only know but also "appreciate" or
"understand" the nature and wrongfulness of his act. Second, in a series of decisions dating
from People v. Wells (1949) 33 Cal.2d 330, 202 P.2d 53 and People v. Gorshen, supra, 51
Cal.2d 716, 336 P.2d 492, we developed the concept of diminished capacity, under which a
defendant can introduce evidence of mental incapacity to negate specific intent, malice, or other
subjective elements of the charged crime. Recently in People v. Cantrell (1973) 8 Cal.3d 672,
105 Cal.Rptr. 792, 504 P.2d 1256, we expressly held that *344 "irresistible impulse" a concept
evolved to supply the volitional element lacking in the M'Naghten test can be utilized to prove
diminished capacity.
But these innovative modifications to the M'Naghten Rule fail to cure its basic defects. Wolff
ameliorates only one of the rigid categories of M'Naghten; as Professor Sherry explains: "It still
. . . falls short of acknowledging the teaching of psychiatry that mental aberration may not only
impair knowledge of wrongfulness but may very well destroy an individual's capacity to control
or to restrain himself." (Sherry, Penal Code Revision Project Progress Report (1968) 43 State
Bar J. 900, 916.) The doctrine of diminished capacity, once hailed as a possible replacement for
the defense of insanity, can now be seen to create its own problems.
The availability of a defense of diminished capacity turns largely on the nature of the crime
charged. If the defendant is charged with a general intent crime, he cannot raise a defense of
diminished capacity regardless of his impaired mental state. (**1324 People v. Noah (1971) 5
Cal.3d 469, 477, 96 Cal.Rptr. 441, 487 P.2d 1009; People v. Nance (1972) 25 Cal.App.3d 925,
929, 102 Cal.Rptr. 266.) If charged with a specific intent crime, he may be able to reduce the
offense to a lesser included general intent crime. If evidence of diminished capacity is used to
negate criminal intent in a crime which contains no lesser offense, however, the defendant may
secure his outright acquittal and release. (See Goldstein, The Insanity Defense, Supra, pp. 201-
202.) The effectiveness of the defense, and the disposition of the defendant, thus turn less on the
nature and seriousness of the defendant's mental disability than on the technical structure of the
criminal law.
***281 A defendant whose criminal activity arises from mental illness or defect usually
requires confinement and special treatment. Penal Code sections 1026 and 1026a provide such
confinement and treatment for persons acquitted on grounds of insanity. A successful
diminished capacity defense, on the other hand, results either in the release of the defendant or
his confinement as an ordinary criminal for a lesser term. Because the diminished capacity
defense thus fails to identify the mentally disturbed defendant, it may result in the defendant not
receiving the care appropriate to his condition. Such a defendant, who may still suffer from his
mental disturbance, may serve his term, be released and thus permitted to become a danger to

the public.
In our opinion the continuing inadequacy of M'Naghten as a test of criminal responsibility
cannot be cured by further attempts to interpret language dating from a different era of
psychological thought, nor by the creation of additional concepts designed to evade the
limitations of M'Naghten. It is time to recast M'Naghten in modern language, taking account of
advances in psychological knowledge and changes in legal thought.
The definition of mental incapacity appearing in section 4.01 of the American Law Institute's
Model Penal Code represents the distillation of nine years of research, exploration, and debate
by the leading legal and medical minds of the country. (United States v. Freeman, supra, 357
F.2d 606, 622.) It specifies that "A person is not responsible for criminal conduct if at the time
of such conduct as a result of mental disease or defect he lacks substantial capacity either to
appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the
requirements of law."

Adhering to the fundamental concepts of free will and criminal responsibility, the American
Law Institute test restates M'Naghten in language consonant with the current legal and
psychological thought. (Goldstein, The Insanity Defense, Supra, p. 87.) It has won widespread
acceptance, having been adopted by every federal circuit except for the first circuit and by 15

*346 **1325 "In the opinion of most thoughtful observers this proposed test (the ALI test) is a
significant improvement over M'Naughton." (People v. Kelly (1973) 10 Cal.3d 565, 581-582,
111 Cal.Rptr. 171, 182, 516 P.2d 875, 887 (Mosk, J., concurring).) The advantages ***282 may
be briefly summarized. First the ALI test adds a volitional element, the ability to conform to
legal requirements, which is missing from the M'Naghten test. Second, it avoids the all-or-
nothing language of M'Naghten and permits a verdict based on lack of substantial capacity.
Third, the ALI test is broad enough to permit a psychiatrist to set before the trier of fact a full
picture of the defendant's mental impairments and flexible enough to adapt to future changes in
psychiatric theory and diagnosis. Fourth, by referring to the defendant's capacity to "appreciate"
the wrongfulness of his conduct the test confirms our holding in People v. Wolff, supra, 61
Cal.2d 795, 40 Cal.Rptr. 271, 394 P.2d 959, that mere verbal knowledge of right and wrong does
not prove sanity. Finally, by establishing a broad test of nonresponsibility, including elements of
volition as well as cognition, the test provides the foundation on which we can order and
rationalize the convoluted and occasionally inconsistent law of diminished capacity.
In light of the manifest superiority of the ALI test, the only barrier to the adoption of that test we
perceive lies in the repeated judicial declarations that any change in the M'Naghten rule requires
legislative action. This pronouncement rests on two bases: the lengthy history of the M'Naghten
rule in California and the failure of the 1927 Legislature, when it revised the procedures for
pleading and trying the defense of insanity, to overturn the M'Naghten test.
*347 The concept that an extended line of judicial decisions, accompanied by legislative
inaction, can freeze the evolution of judicial principles, divesting the courts of authority to
overturn their prior decisions, is not in good repute. *** The power of the court to reshape
judicial doctrine does not authorize us to overturn constitutionally valid statutes. But as Justice
Mosk explained in his concurring opinion in People v. Kelly, supra, 10 Cal.3d 565, 580, 111
Cal.Rptr. 171, 516 P.2d 875, the M'Naghten rule is not an integral part of the statutory structure
of California criminal law. The Legislature has never enacted the M'Naghten rule as a test of
insanity, and its provisions relating to criminal responsibility do not incorporate the M'Naghten

formula. (See Pen.Code, ss 26, 1016, 1367.) Thus replacement of the M'Naghten rule with the
ALI test will not contradict or nullify any legislative enactment.

The concept expressed by some California courts, that any change must emanate from the
Legislature, ignores the fact that the courts have already departed substantially from the
M'Naghten formula. As we explained earlier, we rejected in People v. Wolff, supra, 61 Cal.2d
795, 40 Cal.Rptr. 271, 394 P.2d 959, the *348 portion of M'Naghten holding that a defendant
who "knows" his act is wrong is sane, and held that he must "understand" or "appreciate" the
wrongfulness of his act. We also created the doctrine of diminished capacity specifically to
"ameliorate the law governing criminal responsibility prescribed by the M'Naghten rule" (People
v. Henderson (1963) 60 Cal.2d 482, 490, 35 Cal.Rptr. 77, 82, 386 P.2d 677, 682), and included
in that doctrine concepts of irresistible impulse which the M'Naghten test rejects. Thus adoption
of the ALI rule does not represent a radical break from precedent, but simply an additional step
in the constant revision and updating of the test of criminal responsibility to correspond to
current legal and psychological thought.
Five years ago Justice Mosk, in his concurring opinion in People v. Kelly, supra, 10 Cal.3d 565,
578, 111 Cal.Rptr. 171, 516 P.2d 875, called upon this court to depart from the M'Naghten
formulation and adopt the test proposed by the American Law Institute. For the foregoing
reasons, derived in large part from the analysis in Justice Mosk's concurrence, we now conclude
that the California courts should employ the ALI test to define the defense of insanity. This
decision will apply retroactively only to those cases not yet final in which the defendant has pled
not guilty by reason of insanity and to cases that have not yet come to trial as of the date of the
finality of this opinion.

3. The defendant retains the burden of proof on the issue of insanity.

[2] Evidence Code section 522 provides explicitly that "The party claiming that any person,
including himself, is or was insane has the burden of proof on that issue." The trial judge in the
present case accordingly charged the jury that "the defendant has the burden of proving his legal
insanity by a preponderance of the evidence."
Drew contends that the court's instruction denied him due process of law under the Fourteenth
Amendment. He relies on Mullaney v. Wilbur (1975) 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d
508, in which the United States Supreme Court struck down a Maine statute which required a
homicide defendant to prove that he acted in the **1327 heat of passion to reduce the offense to
manslaughter; the court's language suggested broadly that the state must prove beyond a
reasonable doubt every fact *349 critical to the guilt of the offender. More recent decisions of the
Supreme Court have confirmed, however, that notwithstanding the broad dictum of Mullaney, "it
remained constitutional to burden the defendant with proving his insanity."
***284 Drew further contends that requiring him to bear the burden of proving insanity violates
the due process clause of the California Constitution. (Cal.Const., art. I, s 7.) California courts,
however, have consistently upheld the constitutionality of our rule placing the burden of proof on
the defendant Recently in People v. Miller, supra, 7 Cal.3d 562, 574, 102 Cal.Rptr. 841, 498 P.2d
1089, we unanimously rejected a defendant's contention that the rule conflicted with due process
requirements. The validity of this settled line of authority was called into question only because
of the broad language of the United States Supreme Court opinion in Mullaney v. Wilbur, supra,
421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508; following that court's narrow interpretation of
Mullaney in Patterson v. New York, supra, and its confirmation that a state may constitutionally

require a defendant to prove insanity, doubts respecting the constitutionality of the California
rule have been laid to rest. [FN13]

   FN13. Defendant points out that the federal courts (see Davis v. U. S. (1895) 160 U.S. 469, 16 S.Ct.
   353, 40 L.Ed. 499) and about half of the states (see Note (1976) 64 Geo.L.J. 871, 890, fn. 114;
   Annot. (1968) 17 A.L.R.3d 146) require the prosecution to prove sanity beyond a reasonable doubt.
   We are not, however, concerned with the wisdom of placing the burden of proof on the prosecution
   or the defendant. The Legislature has resolved that issue by enacting Evidence Code section 522.

4. The record supports the jury's finding that defendant was sane under the M'Naghten test of

[3] Defendant Drew argues that even under the M'Naghten test the jury's finding of sanity is not
supported by substantial evidence. If Drew should prevail in this contention, he would be
entitled to an order directing the trial court to find him insane, thus avoiding a retrial of the case
under the ALI test. [FN14] Thus although we have today rejected the M'Naghten rule, we must
nevertheless determine whether the jury's verdict based on that rule *350 is supported by the
record. We therefore explain our conclusion that on the present record a jury instructed under
the M'Naghten rule could reasonably reject the opinions of psychiatric witnesses; finding that
Drew had thus failed to prove his lack of understanding of the nature or wrongfulness of his act,
the jury accordingly could return a verdict of sanity.

   FN14. Drew would also be entitled to an order directing the trial court to find him insane if the
   evidence at the sanity trial demonstrated that he was insane as a matter of law under the ALI test. The
   defense witnesses, however, failed to direct their testimony to the issues critical in establishing
   insanity under the ALI test; in consequence the record on appeal is insufficient to prove insanity as a
   matter of law under that test.

[4] Drew relies on the fact that both court-appointed psychiatrists testified that he was unaware
of the wrongfulness of his assault. The jurors, however, are not automatically required to render
a verdict which conforms to the expert opinion. We explained in People v. Wolff, supra, 61
Cal.2d 795, 40 Cal.Rptr. 271, 394 P.2d 959, that: "However impressive this seeming unanimity
of expert opinion may at first appear . . . our inquiry on this just as on other factual issues is
necessarily limited at the appellate level to a determination whether there is substantial evidence
in the record to support the jury's verdict of sanity . . . under the law of this state. It is only in
the rare case when 'the evidence is uncontradicted and entirely **1328 to the effect that the
accused is insane' (In re Dennis (1959) 51 Cal.2d 666, 674, 335 P.2d 657, that a unanimity of
expert testimony could authorize upsetting a jury finding to the contrary." (61 Cal.2d at p. 804,
40 Cal.Rptr. at p. 276, 394 P.2d at p. 964.) Indeed we have frequently upheld on appeal verdicts
which find a defendant to be sane in the face of contrary unanimous expert opinion.
In People v. Coogler, supra, 71 Cal.2d 153, 77 Cal.Rptr. 790, 454 P.2d 686, we pointed out that
"The chief value of an expert's testimony in this field, as in all other fields, rests upon the
Material from which his opinion is fashioned and the Reasoning by which he progresses from
his material to his conclusion." (71 Cal.2d at p. 166, 77 Cal.Rptr. at p. 797, 454 P.2d at p. 693.
In the present case the jurors might well note that both experts were unfamiliar with Drew's
conduct during the four years following his release from Patton State Hospital, and that their

subsequent examinations of him were relatively brief. More significantly, the jurors could note
that although both psychiatrists stated an opinion that Drew did not appreciate the wrongfulness
of his act, nothing in their testimony explained the reasoning which led to this opinion. Although
the psychiatric testimony described Drew's repeated aggressive acts, and *351 diagnosed his
condition as one of latent schizophrenia, neither psychiatrist explained why that behavior and
diagnosis would lead to the conclusion that Drew was unable to appreciate the wrongfulness of
his aggressive acts.
The prosecution presented no evidence at the sanity trial. Defendant, however, has the burden of
proof on the issue of insanity; if neither party presents credible evidence on that issue the jury
must find him sane. Thus the question on appeal is not so much the substantiality of the
evidence favoring the jury's finding as whether the evidence contrary to that finding is of such
weight and character that the jury could not reasonably reject it. Because the jury could
reasonably reject the psychiatric opinion that Drew was insane under the M'Naghten test on the
ground that the psychiatrists did not present sufficient material and reasoning to justify that
opinion, we conclude that the jury's verdict cannot be overturned as lacking support in the trial
Our conclusion that the jury could reasonably find Drew sane under the M'Naghten rule,
however, is itself a commentary on the inadequacy of that rule. In order to meet his burden of
proof under M'Naghten, defendant had to prove his lack of cognitive capacity at the moment of
the assault. This condition, however, is not a matter which psychiatrists can detect by testing or
interview; neither is such cognitive incapacity a characteristic symptom of defendant's illness.
The psychiatric account of the history and characteristics of Drew's illness does not bear directly
on his ability to understand the difference between right and wrong Because that alleged
inability is not a relevant psychiatric fact. In sum, inadequacy of the expert evidence to prove
insanity under the M'Naghten rule is essentially the result of the fact that M'Naghten requires
proof of a subjective cognitive state which is largely unrelated to the reality of mental illness.

5. Disposition of this appeal.

It is not surprising that in view of the fact that we had not then endorsed the ALI test of mental
incapacity neither witnesses nor counsel structured their presentation at trial in terms of the ALI
test, and the court did not instruct the jury on that standard. The record on appeal, nevertheless
adduces substantial evidence of incapacity under the ALI criteria. His pattern of repetitive
irrational assaults suggests the likelihood that he is unable to control his behavior to conform
**1329 to legal requirements. His incapacity to control his behavior, moreover, is
psychologically *352 relevant to the diagnosis and treatment of his condition; thus the defense
psychiatrists, who observed Drew's behavior and succeeded temporarily in controlling it through
medication, might well have been able to state and support an opinion that he was insane under
the ALI test. In view of the absence of prosecution evidence on the insanity issue, we conclude
that if the case had been tried under the ALI standard and the jury instructed accordingly, it
probably would have returned a verdict finding Drew insane. The trial ***286 court's failure to
employ the ALI test therefore constitutes prejudicial error.

Finally, we recognize that in setting out a legal test to decide whether or not a person is insane
we deal in a matter so delicate and obscure that it cannot be captured in a perfect definition. Yet
because of the grave, and often life and death consequences that follow from a decision as to the
sanity of an offender, we are surely enjoined to spare no effort to frame the best standard that is

currently extant. *** We cannot continue to cast human beings in an ancient and discarded
psychological mould. We must at least to the best of our limited ability accept the reality of the
human psyche, as expert opinion depicts it, and bring the law as close as possible to an appraisal
of the human being. We must recognize in certain cases his substantial incapacity either to
appreciate the criminality of his conduct or to conform his conduct to the requirements of law. In
judgment upon the sanity of the fragile and often inadequate human being we cannot be frozen
into a stereotyped, rejected formula of the past.
The judgment is reversed and the cause remanded for a new trial on the issue raised by
defendant's plea of not guilty by reason of insanity.

BIRD, C. J., and MOSK and NEWMAN, JJ., concur.

The concurring opinion of Justice MOSK has been omitted.
The dissenting opinion of Justice RICHARDSON, in which CLARK and MANUEL, JJ. concur,
has been omitted.

The dissenting opinion of Justice CLARK has been omitted.

                                         704 P.2d 752
                                  Supreme Court of California.
                             The PEOPLE, Plaintiff and Respondent,
                           Jesse SKINNER, Defendant and Appellant.
                                        Sept. 16, 1985.

GRODIN, Justice.
For over a century prior to the decision in People v. Drew (1978) 22 Cal.3d 333, 149 Cal.Rptr.
275, 583 P.2d 1318, California courts framed this state's definition of insanity, as a defense in
criminal cases, upon the two-pronged test adopted by the House of Lords in M'Naghten's Case
(1843) 10 Clark & Fin. 200, 210 [8 Eng.Rep. 718, 722]: "[T]o establish a defence on the ground
of insanity, it must be clearly proved that, at the time of the committing the act, the party accused
was labouring under such a defect of reason, from disease of the mind, as not to know the nature
and quality of the act he was doing; or, if he did know it, that he did not know he was doing what
was wrong." (Emphasis added; see People v. Coffman (1864) 24 Cal. 230, 235.)
Over the years the M'Naghten test became subject to considerable criticism and was abandoned
in a number of jurisdictions. In Drew this court followed suit, adopting the test for mental
incapacity proposed by the American Law Institute: "A person is not responsible for criminal
conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial
capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his
conduct to the requirements of law." (Drew, supra, 22 Cal.3d at p. 345, 149 Cal.Rptr. 275, 583
P.2d 1318.)
In June 1982 the California electorate adopted an initiative measure, popularly known as
Proposition 8, which (among other things) for the first time in this state established a statutory
definition of insanity: "In any criminal proceeding ... in which a plea of not guilty by reason of
insanity is entered, this defense shall be found by the trier of fact only when the accused person
proves by a preponderance of the evidence that he or she was incapable of knowing or
understanding the nature and quality of his or her act and of distinguishing right from wrong at
the time of the commission of the offense." (Pen.Code, § 25, subd. (b) [hereafter section 25(b) ],
emphasis added.)

**754 *769 It is apparent from the language of section 25(b) that it was designed to eliminate the
Drew test and to reinstate the prongs of the M'Naghten test. However, the section uses the
conjunctive "and" instead of the disjunctive "or" to connect the two prongs. Read literally,
therefore, section 25(b) would do more than reinstate the M'Naghten test. It would strip the
insanity defense from an accused who, by reason of mental disease, is incapable of knowing that
the act he was doing was wrong. ***687 That is, in fact, the interpretation adopted by the trial
court in this case.***
[1] [2] Mindful of the serious constitutional questions that might arise were we to accept a literal
construction of the statutory language, and of our obligation wherever possible both to carry out
the intent of the electorate and to construe statutes so as to preserve their constitutionality we
shall conclude that section 25(b) was intended to, and does, restore the M'Naghten test as it
existed in this state before Drew. We shall also conclude that under that test there exist two

distinct and independent bases upon which a verdict of not guilty by reason of insanity might be
Defendant appeals from a judgment of conviction of second degree murder entered upon his
pleas of nolo contendere and not guilty by reason of insanity and a finding by the court, after
*770 a jury was waived, that he was sane at the time of the offense. In finding the defendant
sane, the judge acknowledged that it was more likely than not that defendant suffered from a
mental disease, paranoid schizophrenia, which played a significant part in the killing. The judge
stated that under the Drew test of legal insanity defendant would qualify as insane, and also
found that "under the right-wrong prong of section 25(b), the defendant would qualify as legally
insane; but under the other prong, he clearly does not." Concluding that by the use of the
conjunctive "and" in section 25(b), the electorate demonstrated an intent to establish a stricter
test of legal insanity than the M'Naghten test, and to "virtually eliminate" insanity as a defense,
the judge found that defendant had not established that he was legally insane. Probation was
denied and defendant was sentenced to a term of 15 years to life in the state prison.
Defendant strangled his wife while he was on a day pass from the Camarillo State Hospital at
which he was a patient. Evidence offered at the trial on his plea of not guilty by reason of
insanity included the opinion of a clinical and forensic psychologist that defendant suffered from
either classical paranoic schizophrenia, or schizo-affective illness with significant paranoid
features. A delusional product of this illness **755 was a belief held by defendant that the
marriage vow "till death do us part" bestows on a marital partner a God-given right to kill the
other partner who has violated or was inclined to violate the marital vows, and that because the
vows reflect the direct wishes of God, the killing is with complete moral and criminal impunity.
The act is not wrongful because it is sanctified by the will and desire of God.
***688 Although there was also evidence that would have supported a finding that defendant
was sane, it was apparently the evidence summarized above upon which the trial judge based his
finding that defendant met one, but not both, prongs of the M'Naghten test. Defendant knew the
nature and quality of his act. He knew that his act was homicidal. He was unable to distinguish
right and wrong, however, in that he did not know that this particular killing was wrongful or
In this context we must determine whether the trial court's conclusion that section 25(b), requires
that a defendant meet both prongs of the M'Naghten test to establish legal insanity was correct,
and if not, whether the court's finding that defendant met the "right-wrong" aspect of the test
requires reversal with directions to enter a judgment of not guilty by reason of insanity.
                                               *771 II
                                 The Insanity Defense in California
"It is fundamental to our system of jurisprudence that a person cannot be convicted for acts
performed while insane. (People v. Nash (1959) 52 Cal.2d 36, 50-51 [338 P.2d 416]; ...)"
(People v. Kelly (1973) 10 Cal.3d 565, 574, 111 Cal.Rptr. 171, 516 P.2d 875.) This rule is one
aspect of the equally well established and no less fundamental principle that wrongful intent is an
essential element of crime, a principle reflected in the first statutory criminal law scheme
adopted by our Legislature in 1850. ***
The principle that wrongful intent or criminal mens rea is an essential element of crime was
carried over into the Penal Code of 1872. *** Section 26, as adopted in 1872, provided that "[a]ll
persons are capable of committing crimes, except those belonging to the following classes:
"1. Children under the age of fourteen years, in the absence of clear proof that at the time of

committing the act charged against them, they knew of its wrongfulness;
*772 "2. Idiots;
"3. Lunatics and insane persons;
"4. Persons who committed the act or made the omission charged, under an ignorance or mistake
of fact which disproves any criminal intent;
"5. Persons who committed the act charged, without being conscious thereof;
"6. Persons who committed the act or made the omission charged, through misfortune **756 or
by accident, when it appears that there was no evil design, intention, or culpable negligence;
"7. Married women (unless the crime be punishable with death) acting under the threats,
command, or coercion of their husbands;
"8. Persons (unless the crime be punishable with death) who committed the act or made the
omission charged, under threats ***689 or menaces sufficient to show that they had reasonable
cause to and did believe their lives would be endangered if they refused."
When the Penal Code of 1872 was submitted to the Legislature for adoption, the accompanying
comments of the code commissioners reflected sensitivity to the principle of criminal
responsibility that had been expressed by the court in implementing the prior law. With regard to
section 20, the commissioners noted: "The opinion of the Court in People vs. Harris [ (1866) 29
Cal. 678] is given at length because it is a correct and authoritative exposition of Sec. 20; ... Says
Mr. Bishop (1 Bishop's Cr.Law, Sec. 227): 'There is only one criterion by which the guilt of men
is to be tested. It is whether the mind is criminal. Criminal law relates only to crime, and neither
in philosophical speculation nor in religious or moral sentiment would any people in any age
allow that a man should be deemed guilty unless his mind were so. It is, therefore, a principle of
our legal system, as probably of every other, that the essence of an offense is the wrongful intent,
without which it cannot exist.' ***
As to section 21, which essentially incorporated sections 2 and 3 of the 1850 act, the
commissioners noted that "[t]he natural and probable consequences of every act deliberately
done are presumed to have been intended *773 by the author of the act, if of sane mind." (Ibid.)
It was then understood, although the plea of not guilty by reason of insanity was not added to
sections 1016 and 1017 until 1927 (Stats.1927, ch. 677, §§ 1, 2, pp. 1148-1149), that the insanity
defense could be offered under a plea of not guilty. (Code Commissioners' note, Pen.Code of
Cal. (1st ed. 1872) p. 341.)
The test of legal insanity when the Penal Code of 1872 was adopted by the Legislature was the
two-prong M'Naghten test recognized by this court in People v. Coffman, supra, 24 Cal. 230,
235. Coffman's exposition of the M'Naghten test was set out in the commissioners' note to
section 1016, confirming the legislative understanding of the applicable definition of legal
For more than a century after Coffman recognized the M'Naghten test as applicable in this state it
continued to be used, and although sometimes stated in the conjunctive, was in fact applied so as
to permit a finding of insanity if either prong of the test was satisfied. ***
The instruction on insanity most commonly given prior to Drew (CALJIC No. 4.00 (3d ed.
1970)) stated the rule ***: "If you find that the defendant was capable of knowing and
understanding the nature and quality of his act and, in addition, was capable of knowing and
understanding that his act was wrong, you will find that he was legally sane. [¶] However, if you
find that the defendant was not capable of knowing or understanding the nature and quality of his
act, you will find that he was legally insane; or, if you find that he was incapable of knowing or
understanding that his act was wrong, you will find that he was legally insane."

*774 Because our statutes requiring mens rea, and our past formulation of the M'Naghten and
ALI-Drew tests of insanity have afforded adequate defense to mentally ill persons who lack
wrongful intent and might otherwise be subject to penal sanctions, we have not been called upon
to consider the constitutional implications of the imposition of punishment on persons who act
without that intent. Nor has the United States Supreme Court done so, although that court, too,
has recognized repeatedly that except in regulatory offenses in which the sanctions are relatively
light the existence of wrongful intent is essential to criminal liability.
Because mens rea or wrongful intent is a fundamental aspect of criminal law, the suggestion that
a defendant whose mental illness results in inability to appreciate that his act is wrongful could
be punished by death or imprisonment raises serious questions of constitutional dimension under
both the due process and cruel and unusual punishment provisions of the Constitution. ***
This court suggested a similar view in People v. Coleman (1942) 20 Cal.2d 399, 407, 126 P.2d
349, where we observed: "Obviously an insane person accused of crime would be inhumanely
dealt with if his insanity were considered merely to reduce the degree of his crime or the
punishment therefor."

We need not face these difficult constitutional questions, however, if section 25(b) does no more
than return to the pre-Drew California version of the M'Naghten test.


Although the People agree that the purpose of section 25(b) was to return the test of legal
insanity in California to the pre-ALI-Drew version of the M'Naghten test, they argue that
reversal of this judgment is not required because both prongs of that **760 test are actually the
same. The findings of the trial judge in this case illustrate the fallacy inherent in this argument. It
is true that a person who is unaware of the nature and quality of his act *778 by definition cannot
know that the act is wrong. In this circumstance the "nature and quality" prong subsumes the
"right and wrong" prong.

***693 The reverse does not necessarily follow, however. The expert testimony in this case
supported the findings of the trial court that this defendant was aware of the nature and quality of
his homicidal act. He knew that he was committing an act of strangulation that would, and was
intended to, kill a human being. He was not able to comprehend that the act was wrong because
his mental illness caused him to believe that the act was not only morally justified but was
expected of him. He believed that the homicide was "right."
The People argue further that section 25(b) was intended to "clarify" the meaning of the
right/wrong prong of the California M'Naghten test by establishing that the "wrong" which the
defendant must comprehend is a legal, rather than a moral wrong. Under this formulation this
defendant, who was able to recognize that his act was unlawful, would not escape criminal
responsibility even though he believed his act was commanded by God. We fail to see the
manner in which section 25(b) conveys this clarification of the M'Naghten test. Moreover, even
assuming the validity of this argument, reversal here would be necessary. The trial court did not
find that appellant was able to comprehend that his act was considered unlawful or "wrong" even
though it was commanded by God. That theory does not appear to have been put forth by the

People at trial. [FN11] Neither appellant, nor the trial court addressed the question of ability to
comprehend legal right or wrong.

   FN11. The failure to do so may be explained in part by the inconsistency of this theory of the intent of
   section 25(b), with the theory put forth by the Attorney General in the Attorney General's Guide to
   Proposition 8 (reprinted in Criminal Practice After Proposition 8 (Cont.Ed.Bar 1982) pp. 145-316
   [hereafter CEB] ), which was distributed to prosecutors and other local law enforcement officers.
   There it was stated that section 25(b) "restores the traditional M'Naghten rule as to insanity, People v.
   Kelly (1973) 10 Cal.3d 565, 574 [111 Cal.Rptr. 171, 516 P.2d 875]." (CEB, op cit. supra, at p. 261.)

In any event, past decisions do not support the People's argument that under the California
version of the M'Naghten test a defendant who could comprehend that his act was unlawful
could not be legally insane. That was certainly not the understanding at the time of the adoption
of the Penal Code of 1872. ***The concept of "wrong" was not limited to legal wrong in People
v. Wolff, supra, 61 Cal.2d 795, 40 Cal.Rptr. 271, 394 P.2d 959. There this court explained that
the California version of the M'Naghten test had been liberalized by holding that "knowing" in
the sense of being able to verbalize the concepts of right and wrong was insufficient to establish
legal sanity. Rather, the defendant must "know" in a broader sense--he must appreciate or
understand these concepts. ***
Cases subsequent to Coffman accept inability to appreciate moral wrong as a component of the
California test of legal insanity. (See, e.g., People v. McCarthy (1896) 115 Cal. 255, 263, 46 P.
1073, approving as a correct statement of the law an instruction that insanity did not encompass
moral perversion of a defendant who knew that "the deed is a criminal act, and wrong in itself";
People v. Gilberg, supra, 197 Cal. 306, 314, 240 P. 1000, rejecting moral perversion as an
acceptable test because a defendant might commit serious crimes "and know at the time that the
deed is a criminal act, and wrong in itself," and yet escape punishment.) Thus, although it has
long been held that "moral insanity," arising from a "perverted" moral sense and brought on by
mental illness, is not legal insanity (see People v. Nash (1959) 52 Cal.2d 36, 45, 338 P.2d 416;
People v. Kerrigan (1887) 73 Cal. 222, 224, 14 P. 849), our cases repeatedly distinguish
awareness that an act is "wrong" from knowledge of its legal effect, i.e., that it is
unlawful***695 The rule that a defendant must know what he is doing is "wrong and criminal"
has been recognized as the accepted formulation "since the first decision in this state (People v.
M'Donnell, 47 Cal. 134) and has been followed consistently...." Affirming the judgment in
People v. Rittger (1960) 355 P.2d 645, we applied this test and concluded that the expert
testimony could be understood as meaning that the defendant did recognize that "his conduct did
not accord with social standards of right and legal standards of justification."
The applicability of the insanity defense to a person whose mental illness is the cause of an
insane delusion such as that suffered by defendant, if that delusion rendered him incapable of
appreciating that his act was wrong, was made clear in People v. Hubert (1897) 119 Cal. 216, 51
P. 329. There the trial court had instructed that "defendant 'was laboring under insane delusions
which so permeated his reason as to incapacitate him from knowing the difference between right
and wrong, as to the acts charged in the information, and his relations with the deceased, and her
actions, motives, and intentions toward him, and that he acted in pursuance of such delusions.' "
Id. Although we concluded that the court had erred in this and other instructions on insanity
which took from the jury the factual issues as to the existence of the delusions, no question was
raised as to the applicability of the M'Naghten insanity test to insane delusions which render the
individual incapable of appreciating the wrongfulness of his conduct.

This understanding of the M'Naghten test was further affirmed in People v. Willard, supra, 150
Cal. 543, 554, 89 P. 124, where this court explained: "That insanity may be available as a
defense to a crime charged, it must appear that the defendant, when the act was committed, was
so deranged and diseased mentally that he was not conscious of the wrongful nature of the act
*782 committed. If he has reasoning capacity **763 sufficient to distinguish between right and
wrong as to the particular act he is doing, knowledge and consciousness that what he is doing is
wrong and criminal and will subject him to punishment, he must be held responsible for his
conduct. Although he may be labouring under partial insanity,--as, for instance, suffering from
some insane delusion or hallucination,--still if he ***696 understands the nature and character of
his action and its consequences,--if he has knowledge that it is wrong and criminal, and that if he
does the act he will do wrong, such partial insanity or the existence of such delusion or
hallucination is not sufficient to relieve him from responsibility for his criminal acts."
[5] Our appreciation of the nature of mental illness has developed greatly since Hubert and
Willard were decided, and the medical community now characterizes some delusional mental
illness such as that suffered by defendant as a "schizophrenic disorder," rather than "monomania"
or "partial insanity." The rule expressed in these cases has not changed, however. If the mental
illness is manifested in delusions which render the individual incapable either of knowing the
nature and character of his act, or of understanding that it is wrong, he is legally insane under the
California formulation of the M'Naghten test.

 ******697 [6] Courts in a number of jurisdictions which have considered the question have
come to the conclusion as we do, that a defendant who is incapable of understanding that his act
is morally wrong is not criminally liable merely because he knows the act is unlawful. (See, e.g.,
People v. Wood (1962) 12 N.Y.2d 69, 76, 236 N.Y.S.2d 44, 187 N.E.2d 116.Justice Cardozo, in
an opinion for the New York Court of Appeal, eloquently expressed the underlying philosophy:
"In the light of all these precedents, it is impossible, we think, to say that there is any decisive
adjudication which limits the word 'wrong' in the statutory definition to legal as opposed to moral
wrong.... The interpretation placed upon the statute by the trial judge may be tested by its
consequences. A mother kills her infant child to whom she has been devotedly attached. She
knows the nature and quality of the act; she knows that the law condemns it; but she is inspired
by an insane delusion that God has appeared to her and ordained the sacrifice. It seems a
mockery to say that, within the meaning of the statute, she knows that the act is wrong. If the
definition propounded by the trial judge is right, it would be the duty of a jury to hold her
responsible for the crime. We find nothing either in the history of the rule, or in its reason or
purpose, or in judicial exposition of its meaning, to justify a conclusion so abhorrent.... [¶]
Knowledge that an act is forbidden by law *784 will in most cases permit the inference of
knowledge that, according to the accepted standards of mankind, it is also condemned as an
offense against good morals. Obedience to the law is itself a moral duty. If, however, there is an
insane delusion that God has appeared to the defendant and ordained the commission of a crime,
we think it cannot be said of the offender that he knows the act to be wrong." (People v. Schmidt
(1915) 216 N.Y. 324, 338-340 [110 N.E. 945, 949-950], emphasis added.) [FN16]

   FN16. Justice Cardozo's opinion continued: "It is not enough, to relieve from criminal liability, that
   the prisoner is morally depraved [citation]. It is not enough that he has views of right and wrong at
   variance with those that find expression in the law. The variance must have its origin in some disease
   of the mind [citation]. The anarchist is not at liberty to break the law because he reasons that all
   government is wrong. The devotee of a religious cult that enjoins polygamy or human sacrifice as a

   duty is not thereby relieved from responsibility before the law [citations]. In such cases the belief,
   however false according to our own standards, is not the product of disease. Cases will doubtless arise
   where criminals will take shelter behind a professed belief that their crime was ordained by God, just
   as this defendant attempted to shelter himself behind that belief. We can safely leave such
   fabrications to the common sense of juries." (Schmidt, supra, 216 N.Y. at p. 340 [110 N.E. at pp. 949-

[7] The trial court found, on clearly sufficient evidence, that defendant could not distinguish right
and wrong with regard to his act. No further hearing on the issue of sanity at the time of the act is
required. The judgment is reversed and the superior court is directed to enter a judgment of not
guilty by reason of insanity and to proceed thereafter pursuant to section 1026.
MOSK, Justice, concurring.
I concur in the excellent analysis of the majority. I write only to relate some relevant
background. As Oliver Wendell Holmes observed, "a page of history is worth a volume of
logic." (New York Trust Co. v. Eisner (1921) 256 U.S. 345, 349, 41 S.Ct. 506, 507.)
In 1973 I wrote a separate opinion in People v. Kelly (1973) 10 Cal.3d 565, 578, 111 Cal.Rptr.
171, 516 P.2d 875, urging that ***698 **765 the M'Naughton test be "disavow[ed] as outmoded
and unsupportable in either medical science or law," and that pending legislative action the
American Law Institute formulation be adopted by trial courts as the test for insanity. (ALI
Model Pen.Code, § 4.01.) At that time six states had adopted the ALI formulation, as had every
federal circuit but one. (Id. at p. 582, 111 Cal.Rptr. 171, 516 P.2d 875.)

Within five years a majority of this court had come around to my view in Kelly and judicially
adopted the ALI test in *785 People v. Drew (1978) 583 P.2d 1318. Despite my invitation in
Kelly the Legislature had not taken any action, and it did not do so after Drew. I can only surmise
that the legislators' disinterest was born of the belief that the test of insanity was a judicial
problem, since the M'Naughton test had originally been court-created.
Just as trial courts, prosecutors and defense counsel were achieving a reasonable détente with
Drew, the initiative measure known as Proposition 8 was prepared and submitted to the
electorate. It contained the latent ambiguity discussed in the majority opinion. Therein lies one of
the problems inherent in attempting to adopt rules of evidence and arcane principles of law by
popular vote. It is somewhat comparable to the public deciding by popular vote the appropriate
technique for surgeons to employ in brain surgery.
I am convinced that the use of "and" instead of "or" would have been discovered in the
traditional legislative process. In an assembly committee, on the floor of the assembly, in a
senate committee, on the floor of the senate, in the Governor's veto opportunity, such
inadvertence would likely have been detected, or if the choice of words was deliberate, such
intent would have been clearly declared. In an initiative measure, however, no revision
opportunity is possible and no legislative intent is available; the voter has only the choice of an
enigmatic all or nothing.
In this instance the choice given voters was encumbered by at least 12 subjects subsumed within
what was titled Proposition 8. The numerous subjects were itemized by the Attorney General in
his prepared title for submission to the voters and he concluded with a catchall, "and other
matters." I remain convinced that Proposition 8 was invalid as a clear violation of the
constitutional prohibition against multiple subjects. (Cal. Const., art. II, § 8, subd. (d); see my

conc. & dis. opn. in Brosnahan v. Eu (1982) 31 Cal.3d 1, 6, 641 P.2d 200.) For example, it
would appear impossible to rationalize, as but one subject, a return to the M'Naughton rule of
insanity and a guarantee of school safety. Regrettably, by a four to three majority, my colleagues
expediently failed to invalidate the initiative. Had they done so, much of the subsequent
uncertainties and incongruities in the criminal law would have been avoided.
Since I am bound by stare decisis to accept that untoward result, I must now join in undertaking
the often thankless task of trying to inject some rational meaning into the numerous disparate
subjects covered by Proposition 8. The clumsy effort to "return to M'Naughton " is but the latest
*786 The analysis of the majority being as reasonable and pragmatic as the circumstances
justify, I endorse their opinion.

BIRD, Chief Justice, dissenting.
In June of 1982, the voters adopted a ballot measure which radically altered the test for criminal
insanity in this state. (Pen.Code, § 25, subd. (b), added by Initiative Measure, Primary Elec. June
8, 1982, popularly known as Proposition 8.) I cannot ignore the fact that they adopted language
which unambiguously requires the ***699 accused to demonstrate that "he or she was incapable
of knowing or understanding **766 the nature and quality of his or her act and of distinguishing
right from wrong at the time of the commission of the offense." (Ibid., emphasis added.) There is
nothing in the statute, in Proposition 8 as a whole, or in the ballot arguments that implies that the
electorate intended "and" to be "or." However unwise that choice, it is not within this court's
power to ignore the expression of popular will and rewrite the statute.
Since appellant failed to establish his insanity under the test enunciated in Penal Code section 25,
subdivision (b), I cannot join the decision of my brethren.

                                  The Insanity Defense
                             The American Phsychiatric Association

How can a person who admits committing a crime be found "not guilty by reason of

In this context, "not guilty" does not mean the person did not commit the criminal act for which
he or she is charged. It means that when the person committed the crime, he or she could not tell
right from wrong or could not control his or her behavior because of severe mental defect or
illness. Such a person, the law holds, should not e held criminally responsible for his or her
behavior. The legal test for insanity varies from state to state.

Are "sane" and "insane" medical terms?

No. The word "insane" is a legal term. Because research has identified many different mental
illnesses of varying severities, it is now too simplistic to describe a severely mentally ill person
merely as "insane." Although most people with mental illness do not commit crimes, of those
who do, the vast majority would be judged "sane" if current legal tests for insanity were applied
to their criminal behaviors.

Don't many criminals try to use the insanity defense to escape severe punishment?

No. First, the insanity defense is not often used, and when used is frequently unsuccessful.
According to a 1991 eight-state study funded by the National Institute of Mental Health, the
insanity defense was used in less than one percent of the cases in a representative sampling of
cases before those states' county courts. The study showed that only 26 percent of those insanity
pleas were argued successfully. Most studies show that in approximately 80 percent of the cases
where a defendant is acquitted on a "not guilty by reason of insanity" finding, it is because the
prosecution and defense have agreed on the appropriateness of the plea before trial. That
agreement occurred because both the defense and prosecution agreed that the defendant was
mentally ill and met the jurisdiction's test for insanity. Clearly, the implication is that the insanity
defense is rarely used successfully by malingerers.

Other studies over the past two decades report similar findings. According to Myths and
Realities: A Report of the National Commission on the Insanity Defense, in 1982 only 52 of
32,000 adult defendants represented by the Public Defender's office in New Jersey--less than two
tenths of one percent--entered the insanity plea, and only 15 were successful. A similar number
of insanity defense pleadings--"far less than one percent"--were entered in Virginia during the
same period. A 2001 study in Manhattan (Kirschner and Galperin) noted that over a ten year
period, psychiatric defenses were offered by only 16 out of every 10,000 indicted defendants.
More than 75% of the time that a psychiatric defense was successful, it was the result of the
prosecutors' consent. Out of nearly 100,000 felony indictments during that period, only 17 juries
heard arguments concerning the insanity defense and their deliberations resulted in only 4

insanity acquittals. These authors concluded, "if the prosecutor does not accept the defense, the
judge or the jury is not very likely to accept it either."

The insanity defense is used in defending against many charges, not just murder. The eight-state
study found that while half of those pleading insanity in the surveyed cases had been indicted for
violent crimes, less than 15 percent were charged with murder. The rest were charged with
robbery, property damage, or minor felonies. Of the 15 New Jersey cases described above which
successfully used the defense, only three involved murder. More than 25 percent of Missouri
insanity verdicts reviewed by the National Commission for its report involved less serious crimes
such as auto theft or bad checks, and one involved the theft of a cheap pen.

How long are persons found "not guilty by reason of insanity" committed to a mental

What happens to a defendant after a judge or jury returns a finding of insanity depends on the
crime committed, and on the state in which the trial takes place. Usually, those found "not guilty
by reason of insanity (NGRI)" are confined for treatment in a special hospital for severely
mentally ill persons who have committed crimes. After a period of time, the person may request
a hearing to determine if he or she is no longer a danger to self or others or no longer mentally
ill, and is therefore eligible to be released.

Studies show that persons found not guilty by reason of insanity, on average, are held at least as
long as--and often longer than--persons found guilty and sent to prison for similar crimes. In a
1983 case (Jones v. United States), the US Supreme Court held that an NGRI acquittee "could be
confined to a mental hospital for a period longer than he could have been incarcerated had he
been convicted."

The insanity defense got a lot of attention when John Hinckley--the man who shot
President Reagan to impress the actress Jody Foster--used it in his trial. Has that had any
impact on the way the states look at it?

Yes. In the wake of the attention John Hinckley's trial received, many states and the Congress
sought ways to restrict use of the defense. Many people worried that those found not guilty by
reason of insanity might be released too easily from secure hospitals and would cause harm
again. To answer this concern, some states have created review boards--much like parole boards-
-that take administrative responsibility for those who have come to institutions after a successful
insanity plea. The boards oversee the treatment provided and can set conditions that must be met
if a person is to be released or is to remain in the hospital.

In Connecticut, for instance, in cases where the insanity defense is successfully argued, the
presiding judge determines the amount of time the person would have been incarcerated had they
been found sane and convicted for the crime they committed. The judge then specifies that the
state's review board has control of the convicted person until this period lapses. Other states
apply a rule that these people must be held until an evaluation finds them no longer dangerous or
mentally ill.

So different states look at the insanity defense differently?

Yes. Each of the fifty states and the District of Columbia has its own statute. Each jurisdiction
applies similar principles, but the procedures and criteria used for a finding of insanity vary.

The American Academy of Psychiatry and the Law has developed a practice guideline for
insanity defense evaluations that offers a useful review of historical and current practices
[Journal Am Acad Psychiatry Law 30 (Supp 2), 2002]. According to that review, about one third
of the states have adopted a test for the insanity defense modeled on a standard written during the
1950's by the American Law Institute (ALI).That test holds that a person would "not [be]
responsible for criminal conduct if at the time of such conduct as a result of mental disease or
defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his
conduct or to conform his conduct to the requirements of law." About half the states currently
use some variation of` the narrower M'Naghten Rule, an insanity definition derived from English
case law, which holds that a person is "innocent by reason of insanity [if] at the time of
committing the act, he was laboring under such a defect of reason from disease of the mind as
not to know the nature and quality of the act he was doing, or if he did know it, that he did not
know what he was doing what was wrong." Three states have added a reference to "irresistible
impulse," and four states (Montana, Idaho, Utah, and Kansas) have legislatively abolished the
insanity defense. New Hampshire's standard is the now rare "product of mental illness test," i.e.,
defendants can be found NGRI if their criminal behavior is determined to have resulted from
their disorder.

Following the Hinckley case, Congress altered the U.S. Federal and military standards for the
insanity defense, limiting it to the so-called "cognitive prong" of the ALI test--- that a defendant
would not be responsible if "as a result of severe mental disease or defect, [he] was unable to
appreciate the nature and quality or the wrongfulness of his acts." Altogether, ¾ of the states and
the Federal government have imposed some form of insanity defense reform since Hinckley's
1982 acquittal.

In 1982, the American Psychiatric Association endorsed another standard, written by Richard
Bonnie, a legal expert at the University of Virginia, which states:

A person charged with a criminal offense should be found not guilty by reason of insanity if it is
shown that as a result of mental disease or mental retardation he was unable to appreciate the
wrongfulness of his conduct at the time of the offense. As used in this standard, the terms
"mental disease" or "mental retardation" include only those severely abnormal mental conditions
that grossly and demonstrably impair a person's perception or understanding of reality and that
are not attributable primarily to the voluntary ingestion of alcohol or other psychoactive

The APA does not endorse the "irresistible impulse" test for insanity.

In recent years, some states have replaced the "not guilty by reason of insanity" plea with a
"guilty but mentally ill" plea, or added a finding of " guilty but mentally ill" as an
additional option. Why?

This plea has arisen out of the perception that juries have had difficulty grappling with the issues
of factual guilt and defendants' ability to judge the morality of their actions. The "guilty but
mentally ill" verdict is seen by some as one way the jury may sidestep these questions, shuttling
those who might otherwise "escape" into an insanity plea into a new category where they can be
judged "guilty." It is the APA's position that, while the "guilty but mentally ill" category may
seem to make the jury's job easier, it avoids one of our criminal justice system's most important
functions--deciding, through its deliberations, how society defines responsibility. Moreover,
since persons found guilty but mentally ill (GBMI) are punished in the same way as those found
guilty, use of this verdict may mislead jurors about the consequences of their decisions. Persons
found GBMI typically do not receive specialized mental health services beyond what is normally
available in a prison setting. The APA does not support the "guilty but mentally ill" plea as a
substitute for, or supplement to, the insanity defense.

Shouldn't psychiatrists be the ones to determine whether someone with a mental illness is
really responsible for his or her actions? After all, they're the experts.

No. Psychiatrists' years of training and experience make them experts at diagnosing and treating
mental illnesses. They can offer testimony on the probable nature and severity of the defendant's
illness at the time of the crime, and offer other medical and psychological explanations for
behavior. But that is the extent of their expertise: they are trained in medicine, not the law. It is
the job of the judge or jury, as society's representative, to determine criminal responsibility.

If psychiatrists who testify for the prosecution and the defense give different opinions
during a trial, doesn't that imply there's a lot of guesswork in psychiatric diagnoses?

The use of experts is part of our adversarial court system--lawyers for the prosecution and the
defense often employ experts, such as heart surgeons, radiologists or engineers, who will give
differing testimony during a trial. A difference of opinion among testifying psychiatrists doesn't
imply that the doctors have a murky understanding of mental illnesses. Studies show that
psychiatric diagnoses, especially of severe illnesses, are about 80 percent reliable--on a par with
diagnoses of other medical illnesses. As with other medical problems--such as cancer or a back
injury--a mental illness can have different effects on different people. Even two psychiatrists
who disagree on the fine points of a defendant's illness might be in complete agreement on its
basis and effect.

For further detail, see: APA "Statement on the Insanity Defense" December 1982


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