Hooked on Hype: Addiction and Responsibility

Law and Philosophy

Volumn 19, Issue 1, 2000, Pages 3-49

  Morse, Stephen J ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

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EID: 0034408471     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.2307/3505173     Document Type: Article

References (112)

1. I borrow this felicitous phrase from Jay Wallace's superb book on responsibility. R. Jay Wallace, Responsibility and the Moral Sentiments (Cambridge: Harvard University Press, 1994). Wallace treats the phrase as encompassing both rationality and control defects. I prefer to limit it to the former, however, and will suggest that most control defects can be assimilated to rationality defects.
2. Thomas R. Kosten, "Editorial: Addiction as a Brain Disease", American Journal of Psychiatry 155 (1998), p. 711; accord, Alan I. Leshner, Science is Revolutionizing Our View of Addiction - and What to Do About It, American Journal of Psychiatry 156 (1999), p. 1.
3. Thomas R. Kosten, "Editorial: Addiction as a Brain Disease", American Journal of Psychiatry 155 (1998), p. 711; accord, Alan I. Leshner, Science is Revolutionizing Our View of Addiction - and What to Do About It, American Journal of Psychiatry 156 (1999), p. 1.
4. Mental disorders seldom negate the act requirement and equally rarely negate either the mens rea required by the definition of crimes or the intentionality of immoral conduct. See, Stephen J. Morse, "Crazy Reasons", Journal of Contemporary Legal Issues 10 (1999), p. 210 (considering the act requirement); "Craziness and Criminal Responsibility", Behavioral Sciences and the Law 17 (1999), pp. 161-164 (concerning mens rea).
5. Mental disorders seldom negate the act requirement and equally rarely negate either the mens rea required by the definition of crimes or the intentionality of immoral conduct. See, Stephen J. Morse, "Crazy Reasons", Journal of Contemporary Legal Issues 10 (1999), p. 210 (considering the act requirement); "Craziness and Criminal Responsibility", Behavioral Sciences and the Law 17 (1999), pp. 161-164 (concerning mens rea).
6. Alan I. Leshner, "Addiction Is a Brain Disease, and It Matters", Science 278 (1997), p. 45. Note the similarity to the language of the editorial cited in note 2 supra.
7. Id. I quote this article at length because it is an excellent state of the art review and exemplifies a particular type of thinking about addiction. Observe, however, that despite the concession to the behavioral sciences in the first sentence of the quoted paragraph, the remainder describes solely biological advances and the remainder of the article fails to note one "dramatic advance" in the behavioral understanding of addiction.
8. Id. at 46.
9. See Herbert Fingarette and Anne Fingarette Hasse, Mental Disabilities and Criminal Responsibility (Berkeley: University of California Press, 1979), pp. 145-152 (dated but still accurate account and explanation of why even clear theories and definitions would not make clear the relevance of the disease concept to criminal law).
10. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-IV (Washington, D.C.: American Psychiatric Association, 1994) [hereinafter DSM-IV]; Institute of Medicine, Pathways of Addiction: Opportunities in Drug Abuse Research (Washington, D.C.: National Academy Press, 1996) [hereinafter Pathways of Addiction].
11. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-IV (Washington, D.C.: American Psychiatric Association, 1994) [hereinafter DSM-IV]; Institute of Medicine, Pathways of Addiction: Opportunities in Drug Abuse Research (Washington, D.C.: National Academy Press, 1996) [hereinafter Pathways of Addiction].
12. DSM-IV, note 8 supra, at 181-183.
13. Id. at 176. DSM-IV mentions compulsive use as a usual "essential feature" of substance dependence and discusses it as such in its general discussion of substance dependence. See notes 11-12 and accompanying text, infra. But again, it is not a necessary or sufficient criterion. Moreover, as I discuss below, the descriptive term "compulsive" suffers from various defects. See notes 15-20 and accompanying text, infra. I should also add that, for various reasons, DSM-IV does not use the term disease because it wishes to avoid some of the controversy associated with some of the connotations of the term.
14. Id.
15. Pathways of Addiction, supra note 8, at 19.
16. World Health Organization, ICD-10: The ICD-10 Classification of Mental and Behavioural Disorders (Geneva: World Health Organization, 1992) [hereinafter ICD-10].
17. Id. at 75.
18. Id.
19. DSM-IV, supra note 8, at 609. This feature refers to "impulse control disorders not elsewhere classified", but DSM-IV makes clear that other disorders, such as substance-related disorders, "may have features that involve problems of impulse control." Id.
20. Id.
21. Id. at 418; the specific criteria are listed at 423.
22. Id. at 764-765.
23. Jane E. Edgerton and Robert J. Campbell III (eds.), American Psychiatric Glossary (Washington, D.C.: American Psychiatric Press, 7th ed. 1994), pp. 44-45 (1994).
24. Institute of Medicine, Dispelling the Myths About Addiction: Strategies to Increase Understanding and Strengthen Research (Washington, D.C.: National Academy Press, 1997), pp. 13-14. [hereinafter Dispelling Myths].
25. Attempts to measure the strength of compulsions have been conceptually confused or methodologically suspect. See, Stephen J. Morse, From 'Sikora' to 'Hendricks' : Mental Disorder and Criminal Responsibility, in Lynda F. Clausel & Richard J. Bonnie (eds.), Mental Health Law in Evolution, forthcoming.
26. See Jon Elster, Strong Feelings: Emotion, Addition and Human Behavior (Cambridge: MIT Press, 1999), pp. 166-169; Alan Schwartz, "Views of Addiction and the Duty to Warn", Virginia Law Review 75 (1989), pp. 517-523 (rejecting the "strong substance caused view" of addiction).
27. See Jon Elster, Strong Feelings: Emotion, Addition and Human Behavior (Cambridge: MIT Press, 1999), pp. 166-169; Alan Schwartz, "Views of Addiction and the Duty to Warn", Virginia Law Review 75 (1989), pp. 517-523 (rejecting the "strong substance caused view" of addiction).
28. See generally, George Ainslie, Picoeconomics: The Strategic Interaction of successive Motivational States within the Person (Cambridge and New York: Cambridge University Press, 1992), esp. at 96-273.
29. See Elster, supra note 23, at 62-65.
30. Jon Elster is more skeptical about the scope of what might count as an addiction. See Elster, supra note 23, at 56-58.
31. By behavioral criteria, I refer to thoughts, feelings, perceptions, and actions. Addiction shares this feature with virtually all the specific mental disorders that DSM-IV includes: Behavioral criteria are entirely sufficient to diagnose the disorder; pathophysical criteria are almost never required.
32. Leshner, supra note 4, at 46.
33. Arnold M. Ludwig, Understanding the Alcoholic's Mind (New York and Oxford: Oxford University Press, 1988), pp. 34-35.
34. See the discussion below.
35. See, e.g., Arthur L. Caplan, H. Tristram Engelhardt, Jr. & James J. McCartney (eds.), Concepts of Health and Disease: Interdisciplinary Perspectives (Reading, MA: Addison Wesley Publishing Company, Advanced Book Program, 1981).
36. See, e.g., Jerome C. Wakefield, "The Concept of Mental Disorder: On the Boundary Between Biological Facts and Social Values", 47 American Psychologist 47 (1992), p. 373.
37. DSM-IV, supra note 8, at xxi.
38. Id. See also, Jerome C. Wakefield, "Disorder as Harmful Dysfunction: A Conceptual Critique of DSM-III-R's Definition of Mental Disorder", 99 Psychological Review 232 (1992), p. 232 (addressing same generic definition DSM-IV uses).
39. But see, Dispelling the Myths, supra note 21, at 73-87 (more optimistic view based on recent research, but still admitting limited effectiveness and substantial knowledge gaps).
40. Even the skeptical Jon Elster concedes, for example, that compulsive gambling shares many characteristics with substance addictions and might well qualify as an addiction and that being in love is like being addicted to speed. See Jon Elster, Gambling and Addiction, in Jon Elster & Ole-Jorgen Skog (eds.), Getting Hooked: Rationality and Addiction (Cambridge and New York; Cambridge University Press, 1999), pp. 208, 229 (1999); Elster, note 23 supra, at 5.
41. Even the skeptical Jon Elster concedes, for example, that compulsive gambling shares many characteristics with substance addictions and might well qualify as an addiction and that being in love is like being addicted to speed. See Jon Elster, Gambling and Addiction, in Jon Elster & Ole-Jorgen Skog (eds.), Getting Hooked: Rationality and Addiction (Cambridge and New York; Cambridge University Press, 1999), pp. 208, 229 (1999); Elster, note 23 supra, at 5.
42. American Psychiatric Glossary, supra note 20.
43. It is sometimes claimed that some drags, such as crack cocaine, are counter-examples, but there is little evidence that this is true. In general, the more experience is gained with a drag, the less it appears inevitably addicting. See Timothy Egan, "A Drag Ran Its Course, Then Hid With Its Users", New York Times, section 1, p. 1 (September 19, 1999) (discussing, inter alia, the declining rate of crack usage, the effect on potential users of seeing the drag's effects, and the natural cycle of drag usage). Jon Elster cites the case of a particularly debased crack addict to demonstrate that, at least during binges, crack addicts are reward-insensitive. But the most interesting part of the anecdote is that the other participants in the crack party evidently did not inevitably start binging and become reward-insensitive. See Elster, supra note 23, at 166-167.
44. It is sometimes claimed that some drags, such as crack cocaine, are counter- examples, but there is little evidence that this is true. In general, the more experience is gained with a drag, the less it appears inevitably addicting. See Timothy Egan, "A Drag Ran Its Course, Then Hid With Its Users", New York Times, section 1, p. 1 (September 19, 1999) (discussing, inter alia, the declining rate of crack usage, the effect on potential users of seeing the drag's effects, and the natural cycle of drag usage). Jon Elster cites the case of a particularly debased crack addict to demonstrate that, at least during binges, crack addicts are reward-insensitive. But the most interesting part of the anecdote is that the other participants in the crack party evidently did not inevitably start binging and become reward-insensitive. See Elster, supra note 23, at 166-167.
45. See Philippe Bourgois, In Search of Respect: Selling Crack in El Barrio (Cambridge and New York: Cambridge University Press, 1995).
46. See the discussion below.
47. Kosten, supra note 2.
48. Robinson v. California, 370 U.S. 660 (1962).
49. In Powell v. Texas, Justice Marshall writing for the plurality and rejecting a claim that the Constitution requires states to provide an excuse to crime based on the compulsion allegedly associated with the disease, alcoholism, was unwilling to reject the usefulness of criminalization as one means of addressing the problem. Based on our limited knowledge and treatment success, Marshall wrote that there might be deterrent and civil liberties virtues to using the criminal justice system to respond to the behavioral consequences of alcoholism. Powell v. Texas, 392 U.S. 514, 528-531 (1968).
50. See, James Q. Wilson, "What To Do About Crime", Commentary 25 (September, 1994).
51. Roy F. Baumeister, Todd F. Heatherton and Dianne M. Tice, Losing Control: How and Why People Fail at Self-Regulation (San Diego: Academic Press, 1994), p. 134. The authors believe that the concept of addiction should be limited to physiological and psychological dependence on substances that leads to some loss of control and aversive reactions such as "withdrawal" when the substance is absent. Id. at 133.
52. I will assume that justified conduct does not violate a moral or criminal prohibition. A more formalistic criminal law analysis holds that justified conduct does violate a prima facie criminal prohibition, but ultimately the conduct is judged right or at least permissible. See Michael S. Moore, Placing Blame: A General Theory of the Criminal Law (Oxford: Clarendon Press; New York: Oxford University Press, 1997), pp. 31-33, 64-67 (arguing that justification should be treated as part of the special part of the criminal law). In either case, illicit drug activity is almost never justified under current legal doctrine.
53. Virtually the entire discussion and all the examples are drawn from criminal law, but suitably adjusted, the mode of analysis applies equally well to purely moral evaluation of statuses and conduct that are not criminal.
54. See Stephen J. Morse, "Immaturity and Irresponsibility", Journal of Criminal Law and Criminology 88 (1997), pp. 15, 52-56.
55. See Elster, supra note 23, at 185.
56. See Gary S. Becker, "A Theory of Rational Addiction", in Gary S. Becker, Accounting for Tastes (Cambridge: Harvard University Press, 1996), p. 50.
57. Although addicts may be largely responsible for becoming addicts and also responsible for much of their drug-related activity while addicted, our society should try to help change the odds for those in my not-hypothetical example. See section IV.C. infra.
58. Infants born to addicted mothers might be an exception, but this exceptional case does not undermine the general argument.
59. See, e.g., Montana v. Egelhoff, 518 U.S. 37 (1996) (upholding the constitutionality of a state statute excluding evidence of intoxication relevant to whether the defendant in fact had the subjective mens rea required by the definition of the crime).
60. I discuss the assumption further in this section.
61. Addicts simply need sufficiently good reason not to yield. One might object that they only need sufficiently good inducement, rather than good reason, but in this case the inducement is in fact a good reason. Another possibility is that the variable that motivates abstinence is not a good reason, but simply one that is so salient that it creates motivational force. This is undoubtedly possible, but in most cases of genuine addiction, what induces abstinence will almost certainly be a good reason, rather than simply a salient rationale. I thank Geoffrey Sayre-McCord for helpful insight on these points.
62. I owe the itch example to George Ainslee. The bladder example was first suggested by an anonymous participant at a conference. Jon Elster also uses it. On Tourette's Disorder, see Charles W. Popper & Ronald Steingard, Disorders Usually First Diagnosed in Infancy, Childhood, or Adolescence, in Robert E. Hales, Stuart C. Yudofsky & John A. Talbot, (eds.), The American Psychiatric Press Textbook of Psychiatry (Washington, D.C.: American Psychiatric Press, 2d ed. 1994), pp. 729, 795-798.
63. If a full bladder finally simply "overflows" because the pressure prevents the agent from controlling the sphincter muscles, voiding is purely a mechanism.
64. See, Bernard J. Baars, "Why Volition is a Foundation Problem for Psychology", Consciousness and Cognition 2 (1993); p. 281; Stephen J. Morse, "Culpability and Control", University of Pennsylvania Law Review 142 (1994), pp. 1587, 1595-1597.
65. See, Bernard J. Baars, "Why Volition is a Foundation Problem for Psychology", Consciousness and Cognition 2 (1993); p. 281; Stephen J. Morse, "Culpability and Control", University of Pennsylvania Law Review 142 (1994), pp. 1587, 1595-1597.
66. Michael S. Moore, Act and Crime: The Theory of Action and Its Implications for Criminal Law (Oxford: Clarendon Press, 1993), pp. 113-165.
67. When an agent has a duty to act and may be criminally liable for an omission rather than for an action, in rare cases a genuine volitional problem may arise that prevents the agent from acting intentionally to avert harm. See Morse, supra note 58, at 1597-1598.
68. E.g., Galen Strawson, Freedom and Belief (Oxford: Clarendon Press; New York: Oxford University Press, 1986), pp. 66-67 (citing Kant).
69. See, e.g., W. Charlton, Weakness of the Will: A Philosophical Introduction (Oxford and New York: B. Blackwell, 1988) (competing accounts of weakness of the will); Jay Wallace, "Addiction as Defect of the Will: Some Philosophical Reflections", Law and Philosophy 18 (1991), p. 621, especially sec. 2.
70. See, e.g., W. Charlton, Weakness of the Will: A Philosophical Introduction (Oxford and New York: B. Blackwell, 1988) (competing accounts of weakness of the will); Jay Wallace, "Addiction as Defect of the Will: Some Philosophical Reflections", Law and Philosophy 18 (1991), p. 621, especially sec. 2.
71. A classic, well-known example of a theory of volition that can be understood in ordinary language terms and that has therefore received much attention in the legal as well as philosophical literatures, is Harry Frankfurt's hierarchical theory. Harry G. Frankfurt, The Importance of What We Care About: Philosophical Essays (Cambridge and New York: Cambridge University Press, 1988), pp. 11, 24. For reasons I have considered elsewhere, however, this seemingly attractive model does not succeed. Morse, supra note 58, at 1626-1628.
72. A classic, well-known example of a theory of volition that can be understood in ordinary language terms and that has therefore received much attention in the legal as well as philosophical literatures, is Harry Frankfurt's hierarchical theory. Harry G. Frankfurt, The Importance of What We Care About: Philosophical Essays (Cambridge and New York: Cambridge University Press, 1988), pp. 11, 24. For reasons I have considered elsewhere, however, this seemingly attractive model does not succeed. Morse, supra note 58, at 1626-1628.
73. The current discussion modifies and extends a previous treatment of this issue. See, e.g., Morse, supra note 58, at 1621-1634. The proposal has been enormously influenced by Alan Wertheimer's treatment of similar issues. See, Alan Wertheimer, Coercion (Princeton: Princeton University Press, 1987). I assume that duress can sometimes be an excusing condition. Jay Wallace believes that it is always a justification. See, Wallace, supra note 1, at 144-147.1 discuss the differences in the text infra.
74. The current discussion modifies and extends a previous treatment of this issue. See, e.g., Morse, supra note 58, at 1621-1634. The proposal has been enormously influenced by Alan Wertheimer's treatment of similar issues. See, Alan Wertheimer, Coercion (Princeton: Princeton University Press, 1987). I assume that duress can sometimes be an excusing condition. Jay Wallace believes that it is always a justification. See, Wallace, supra note 1, at 144-147.1 discuss the differences in the text infra.
75. The current discussion modifies and extends a previous treatment of this issue. See, e.g., Morse, supra note 58, at 1621-1634. The proposal has been enormously influenced by Alan Wertheimer's treatment of similar issues. See, Alan Wertheimer, Coercion (Princeton: Princeton University Press, 1987). I assume that duress can sometimes be an excusing condition. Jay Wallace believes that it is always a justification. See, Wallace, supra note 1, at 144-147.1 discuss the differences in the text infra.
76. Model Penal Code, § 2.09 (1962).
77. Michael Moore refers to these as the strong and weak theories of duress as a justification.
78. Model Penal Code, § 3.02(1) (1962).
79. Baumeister et al., supra note 45, pp. 242-256 (considering self-regulation techniques and distinguishing underregulation, in which the agent often actively participates, and misregulation, in which the agent seldom actively participates).
80. See, American Bar Association, ABA Criminal Justice Mental Health Standards (Washington, D.C.: American Bar Association, 1984), pp. 330, 339-342; American Psychiatric Association, Statement on the Insanity Defense (Washington, D.C.: American Psychiatric Assocation, 1982), p. 11.
81. See, American Bar Association, ABA Criminal Justice Mental Health Standards (Washington, D.C.: American Bar Association, 1984), pp. 330, 339-342; American Psychiatric Association, Statement on the Insanity Defense (Washington, D.C.: American Psychiatric Assocation, 1982), p. 11.
82. For example, one writer explains that, "The strength of the craving may be gauged by how willing the person is to sacrifice other sources of reward or well-being in life to continue to engage in the addictive behavior." Dennis M. Donovan, "Assessment of Addictive Behaviors: Implications of an Emerging Biopsychosocial Model", in Dennis M. Donovan & G. Alan Marlatt (eds.), Assessment of Addictive Behaviors (New York: Guilford Press, 1988), pp. 3,6. Although written by an estimable researcher, it is no more than an operationalized, common sense measure.
83. See, DSM-IV, supra note 8, at 609 (essential features of "impulse-control disorders" include a build up of tension and arousal).
84. Id. (essential feature of "impulse-control disorders" is an experience of pleasure, satisfaction or relief after committing the impulsive act).
85. Herbert Fingarette and Anne F. Hasse, Mental Disabilities and Criminal Responsibility (Berkeley: University of California Press, 1979), p. 61.
86. The analysis could apply to moral dilemmas that the criminal law does not address. Imagine a person who possesses a monetarily worthless locket that contains an equally financially worthless but emotionally priceless memento, say, a strand of a sainted parent's hair. One could easily imagine that a threat to destroy the locket might morally excuse quite serious property crime and perhaps crimes against the person, although the criminal law would recognize no excuse in this case.
87. See John Kaplan, The Hardest Drug: Heroin and Public Policy (Chicago: University of Chicago Press, 1983), pp. 35-36.
88. Ludwig, supra note 29, at 58-59. Such cases are surely rare, however, and most alcoholics who wish to drink either discontinue their aversive therapy or find ways to disable its effect.
89. See, Donovan, supra note 78.
90. See, e.g., NY Penal Law, §35.05 (Consol. 1999) (allowing the defense as an emergency measure to avoid an imminent harm if the situation occurred "through no fault of the actor").
91. See, e.g., Donovan, supra note 78, at 5-11 (describing "commonalities across addictive behaviors").
92. See, e.g., Michael B. Ross, "It's Time for Me to Die: An Inside Look at Death Row", The Journal of Psychiatry and Law 26 (1998), pp. 482-483 (first person account by death row inmate with persistent, allegedly overwhelming urges to degrade, rape and kill, who describes the urges as a song one cannot get out of one's head).
93. See Elster, supra note 23, at 169-179 (reviewing the potential mechanisms).
94. I owe this point to George Ainslee.
95. Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics (Washington, D.C.: U.S. Dept. of Justice, Bureau of Justice Statistics, 1997), p. 364. These data are for marijuana, opiates, cocaine and methamphetamines, and do not include alcohol, which would raise the percentages substantially. In all twenty-three cities reported, the rates for males exceeded fifty percent; in all but three the rates for females also exceeded fifty percent.
96. In the case of licit substances, such as alcohol and nicotine, the risk may not be legally unjustified, however. Cf., Model Penal Code, §2.02(2)(c)&(d) (1962).
97. Assuming that addicts are responsible for their condition, an interesting question is whether addiction is just a status, as Robinson held, or whether it necessarily includes seeking and using behavior, as the definition I considered above requires. See, Robinson v. California, 370 U.S. 660 (1962); notes 5-29 and accompanying text, supra. Because the law is unconcerned with status per se, I will not address the criminality or immorality of simply being an addict, although many views of morality might reasonably do so.
98. The major exception will be cases in which the addict offends while in a state of "unconsciousness" or blackout induced by substance use. Most jurisdictions would permit only limited use of such evidence to negate mens rea and some would not permit it at all.
99. I assume that almost all jurisdictions would permit this defense for cases in which the settled insanity resulted from illicit drugs. See, Wayne R. LaFave & Austin Scott, Jr., Criminal Law (St. Paul: West Publishing, 2d Ed. 1986), p. 395, n. 61.
100. Section V, infra, considers the case for mitigation in more detail.
101. Gary Watson, "Responsibility and the limits of evil: Variations on a Strawsonian theme", in Ferdinand Schoeman, Ed., Responsibility, Character, and the Emotions: New Essays in Moral Psychology (Cambridge and New York: Cambridge University Press, 1987), pp. 256, 275. Watson's description was of the life of Robert Alton Harris, a notorious multiple murderer who seemed to have no empathy for other people. Indeed, his cellblock mates on death row detested him. Yet if one reads his life history, it is difficult not to have at least a modicum of sympathy for Harris and to think that a dreadful outcome was entirely understandable for reasons in no way Harris' fault.
102. See, Stephen J. Morse, "Deprivation and Desert", in William Heffernan & John Kleinig, eds., From Criminal Justice to Social Justice (forthcoming) (considering and rejecting the various theories proposed to excuse on the basis of an unfortunate life history).
103. For ease of exposition, I shall discuss only rationality. I believe, however, that the argument applies equally well to an internal coercion or a so-called volitional theory of excuse.
104. The major exceptions are the mitigating doctrines of homicide that reduce murder to manslaughter and sentencing practices.
105. Stephen J. Morse, "Undiminished Confusion in Diminished Capacity", Journal of Criminal Law and Criminology 75 (1984), pp. 28-36.
106. Stephen J. Morse, "Excusing and the New Excuse Defenses: A Legal and Conceptual Review", in M. Tonry (ed.), Crime and Justice 23 (1998), pp. 301-303.
107. Patterson v. New York, 423 U.S. 197 (1977). It is important to distinguish GPR from "Guilty But Mentally 111 [GBMI]", a verdict adopted by a substantial minority of the states. GBMI reflects a jury finding that the defendant was mentally ill at the time of the crime, but that the defendant was fully responsible for her conduct. A GBMI defendant receives no necessary reduction in sentence - indeed, in some jurisdictions capital punishment may be imposed - nor does it guarantee treatment for the defendant that otherwise would not have been available. Thus, unlike GPR, it is not a mitigating (or excusing) "defense." Indeed, it is not a defense at all. In my opinion, GBMI is a useless, confusing alternative that impermissibly allows juries to avoid finding a defendant not guilty by reason of insanity in cases in which legal insanity appears justified. GBMI is like "Guilty But Hepatitis." For a more complete critique, see, Stephen J. Morse, "Excusing the Crazy: The Insanity Defense Reconsidered", Southern California Law Review 58 (1985), pp. 803-804.
108. Patterson v. New York, 423 U.S. 197 (1977). It is important to distinguish GPR from "Guilty But Mentally 111 [GBMI]", a verdict adopted by a substantial minority of the states. GBMI reflects a jury finding that the defendant was mentally ill at the time of the crime, but that the defendant was fully responsible for her conduct. A GBMI defendant receives no necessary reduction in sentence -indeed, in some jurisdictions capital punishment may be imposed - nor does it guarantee treatment for the defendant that otherwise would not have been available. Thus, unlike GPR, it is not a mitigating (or excusing) "defense." Indeed, it is not a defense at all. In my opinion, GBMI is a useless, confusing alternative that impermissibly allows juries to avoid finding a defendant not guilty by reason of insanity in cases in which legal insanity appears justified. GBMI is like "Guilty But Hepatitis." For a more complete critique, see, Stephen J. Morse, "Excusing the Crazy: The Insanity Defense Reconsidered", Southern California Law Review 58 (1985), pp. 803-804.
109. Model Penal Code, §210.3(1)(b) (1962) (reducing homicides that would otherwise constitute murder to the lesser crime of manslaughter).
110. Rita J. Simon, The Jury and the Defense of Insanity (Boston: Little Brown, 1967); Henry J. Steadman et al., Before and After Hinckley: Evaluating Insanity Defense Reform (New York: Guilford Press, 1993).
111. Rita J. Simon, The Jury and the Defense of Insanity (Boston: Little Brown, 1967); Henry J. Steadman et al., Before and After Hinckley: Evaluating Insanity Defense Reform (New York: Guilford Press, 1993).
112. For a more complete discussion of the potential problems a verdict of GPR might create, see, Morse, supra note 94, at 305-306.