The unfortunate consequence is that there is so general and growing a scepticism about the plea of insanity, entirely apart from its actual merits, that it is difficult in ordinary cases, whatever the jurors may think or say in regard to the matter, to secure twelve men who will give the defence fair consideration at the outset.
This is manifest in frequent expressions from talesmen such as: "I think the defence of insanity is played out," or "I believe everybody is a little insane, anyhow" (very popular and regarded by jurymen as witty), or "Well, I have an idea that when a fellow can't cook up any other defence he claims to be insane."
The result is a rather paradoxical situation: The attitude of the ordinary jury in a homicide case, where the defence of insanity is interposed, is usually at the outset one of distrust, and their impulse is to brush the claim aside. This tendency is strengthened by the legal presumption, which the prosecutor invariably calls to their attention, that the defendant is sane. Every expert who has testified for the defence in the ordinary "knock down and drag out" homicide case must have felt with the prisoner's attorneys, that it was "up to them" not so much to create a doubt of the defendant's sanity as to prove that he was insane, if they expected consideration from the jury.
Now let us assume that the defence is meritorious and that the prisoner's experts have created a favorable impression. Let us go even further and assume that they have generated a reasonable doubt in the mind of the jury as to the defendant's responsibility at the time he committed the offence. What generally occurs? Not, as one would suppose, an acquittal, but, in nine cases out of ten, a conviction in a lower degree.
The only usual result of an honest claim of irresponsibility on the ground of insanity is to lead the jury to reduce the grade of the offence from murder in the first, entailing the death penalty, to murder in the second degree. The jury have no intention of "taking the chance" involved in turning the man loose on the community and their minds are filled with the predominating fact that a human being has been killed. They have an idea that it is as easy to get "sworn out" of a lunatic asylum as they suppose it is to get "sworn into" one, and they know that if the prisoner is found to be insane when sent to State's prison he will be transferred elsewhere. They, therefore, as a rule, waste little time upon the question of how far the defendant was irresponsible within the legal definition when he committed the deed, but convict him "on general principles," trusting the prison officials to remedy any possible injustice. The jury in such cases ignore the law and decline either to acquit or to convict in accordance with the test. Their action becomes rather that of a lay commission condemning the prisoner to hard labor for life on the ground that he is medically insane.
Assuming that the jury take the defence seriously, there is only one class of cases where, in the writer's opinion, they follow the legal test as laid down by the court-that is to say, in cases of extreme brutality. Here they hold the prisoner to the letter of the law, and the more abhorrent the crime (even where its nature might indicate to a physician that the accused was the victim of some sort of mania) the less likely they are to acquit. The writer has prosecuted perhaps a dozen homicide and other cases where the defence was insanity. In his own experience he has known of no acquittal. In several instances the defendants were undoubtedly insane, but, strictly speaking, probably vaguely knew the nature and quality of their acts and that they were wrong. In a few of these the juries convicted of murder in the first degree because the circumstances surrounding the homicides were so brutal that the harshness of the technical doctrine they were required to apply was overshadowed in their minds by their horror of the act itself. In other cases, where either the accused appeared obviously abnormal as he sat at the bar of justice, or the details of the crime were less abhorrent, they convicted of murder in the second degree in accordance with the reasoning set forth in the foregoing paragraph. The writer seriously advances the suggestion that the more the brutality of a homicide indicates mental derangement the less chance the defendant has to secure an acquittal upon the plea of insanity.
And this leads us to that increasingly large body of cases where the usual scepticism of the jury in regard to such defences is counterbalanced by some real or imaginary element of sympathy. In cities like New York, where the jury system is seen at its very best, where the statistics show seventy per cent. of convictions by verdict for the year 1907, and where the sentiment of the community is against the invocation of any law supposedly higher than that of the State, our talesmen are unwilling to condone homicide or to act as self-constituted pardoning bodies, for they know that an obviously lawless verdict will bring down upon them the censure of the public and the press. This is perhaps demonstrated by the fact that in New York County a higher percentage of women are convicted of homicide than of men.
But the plea of insanity, with its vague test of responsibility, whose terms the juryman may construe for himself (or which his fellow-jurors may construe for him) offers an unlimited and fertile field for the "reasonable" doubt and an easy excuse for the conscientious talesman who wants to acquit if he can. Juries take the little stock in irresistible impulses and emotional or temporary insanity save as a cloak to cover an unrighteous acquittal.
In no other class of cases does "luck" play so large a part in the final disposition of the prisoner. A jury is quite as likely to send an insane man to the electric chair as to acquit a defendant who is fully responsible for his crime.
To recapitulate from the writer's experience:
(1) The ordinary juror tends to be sceptical as to the good faith of the defence of insanity.
(2) When once this distrust is removed by honest evidence on the part of the defence, he usually declines to follow the legal test as laid down by the court on the general theory that any one but an idiot or a maniac has some knowledge of what he is doing and whether it is right or wrong.
(3) He applies the strict legal test only in cases of extreme brutality.
(4) In all other cases he follows the medical rather than the legal test, but instead of acquitting the accused on account of his medical irresponsibility, merely convicts in a lower degree.
The following deductions may also fairly be made from observation:
(1) That the present legal test for criminal responsibility is admittedly vague and inadequate, affording great opportunity for divergent expert testimony and a readily availed of excuse for the arbitrary and sentimental actions of juries, to which is largely due the distrust prevailing of the claim of insanity when interposed as a defence to crime.
(2) That expert medical testimony in such cases is largely discounted by the layman.
(3) That in no class of cases are the verdicts of jurors so apt to be influenced solely by emotion and prejudice, or to be guided less by the law as laid down by the court.
(4) That a new definition of criminal responsibility is necessary, based upon present knowledge of mental disease and its causes.
(5) Lastly, that, as whatever definition may be adopted will inevitably be difficult of application by an untutored lay jury, our procedure should be so amended that they may be relieved wherever possible of a task sufficiently difficult for even the most experienced and expert alienists.
A classification of the different forms of insanity, based upon its causes to which the case of any particular accused might be relegated, such as has recently been urged by a distinguished young neurologist, would not, with a few exceptions, assist us in determining his responsibility. It would be easy to say then, as now, that lunatics or maniacs should not be held responsible for their acts, but we should be left where we are at present in regard to all those shadowy cases where the accused had insane, incomplete or imperfect knowledge of what he was doing. It would be ridiculous, for example, to lay down a general rule that no person suffering from hysterical insanity should be punished for his acts. Yet, even so, such a classification would instantly remedy that anachronism in our present law which refuses to recognize as irresponsible those born without power to control their emotions-the psychopathic inferiors of science, and the real victims of dementia praecox.
Of course, if the insanity under which the defendant labors bears no relation to or connection with the deed for which he is on trial, there would logically be no reason why his insanity on other subjects should be any defence to his crime. For example, there is the well-known case of the Harvard professor who was apparently sane on all other matters, yet believed himself to be possessed of glass legs. Had this man in wanton anger struck and killed another, his "glass leg" delusion could not logically have availed him. If, however, he had struck and killed one who he believed was going to shatter his legs it might have been important. The illustration is clear enough, but its application probably involves a mistaken premise. If he thought he had glass legs his mind was undoubtedly deranged-whether enough or not enough to constitute him irresponsible or beyond the effect of penal discipline might be a difficult question. The generally accepted doctrine is, that if a man has a delusion concerning something, which if actually existing as he believed it to be would be no excuse for his committing the criminal act, he is responsible and liable to punishment; but, as Bishop well says:
"This branch of the doctrine should be cautiously received; for delusion of any kind is strongly indicative of a generally diseased mind."
The new test to determine responsibility will recognize, as does the law of Germany, that there can be no criminal act where the free determination of the will is excluded by disease, and that the capacity to distinguish between right and wrong is inconclusive. It may perhaps have to take a general form, leaving it to a lay, or a mixed lay-and-expert jury to say merely whether the accused had a disease of the mind of a type recognized by science, and whether the alleged criminal act was of such a character as would naturally flow from that type of insanity, in which case it would seem obviously just to regard the defendant as partially irresponsible, and perhaps entirely so. Possibly the practical needs of the moment might be met by permitting such a jury to determine whether the defendant had such a knowledge of the wrongful nature and consequences of his act and such a control over his will as to be a proper subject of punishment.* This would require the jury to find that the defendant had some knowledge of right and wrong and the power to choose between them. In any event, to render the accused entirely irresponsible, his act should arise out of and be caused solely by the diseased condition of his mind. The law, while asserting the responsibility of many insane people, should recognize "partial" responsibility as well.
*See State vs. Richards, 1873, Conn.
The reader may feel that little after all would be gained, but he will observe that at any rate such a test, however imperfect, would permit juries to do lawfully that which they now do by violating their oaths. The writer believes that the best concrete test yet formulated and applied by any court is that laid down in Parsons vs. The State of Alabama (81 Ala., 577):
"1. Was the defendant at the time of the commission of the alleged crime, as matter of fact, afflicted with a disease of the mind, so as to be either idiotic, or otherwise insane?
"2. If such be the case, did he know right from wrong as applied to the particular act in question? If he did not have such knowledge, he is not legally responsible.
"3. If he did have such knowledge, he may nevertheless not be legally responsible if the two following conditions concur:
"(1) If, by reason of the duress of such mental disease, he had so far lost the power to choose between the right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed.
"(2) And if, at the same time, the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely."
But whatever modification in the present test of criminal responsibility is adopted, there must come an equally, if not even more important, reform in the procedure in insanity cases, which to-day is as cumbersome and out of date as the law itself. As things stand now in New York and most other jurisdictions there are no adequate means open to the State to find out the actual present or past mental condition of the defendant until the trial itself, and ofttimes not even then.
In New York, in cases like Thaw's, the accused, while fully intending to interpose the defence of insanity (which he is now permitted to do simply under the general plea of "not guilty") may not only conceal the fact until the trial, but may likewise successfully block every effort of the authorities to examine him and find out his present mental condition. He may thus keep it out of the power of the District Attorney to secure the facts upon which to move for a commission to determine whether or not he ought to be in an insane asylum or is a fit subject for trial, and at the same time prevent the prosecutor from obtaining any evidence through direct medical observation by which to meet the claim, which may be "sprung" suddenly upon him later at the trial, that the defendant was irresponsible.
In order that this may be clearly understood by the reader he should fully appreciate the distinction between (1) the claim on the part of an accused that he is at present insane, and for that reason should not be either tried or punished for his alleged offence, and (2) the defence that he was (irrespective of his present mental condition) insane within the legal definition of irresponsibility at the time he committed it. No person who is incapable of understanding the nature of the proceedings against him or of consulting with counsel and preparing his defence can be placed on trial at all, or, if already on trial, can continue to be tried, and if a defendant "appears to the court to be insane," the judge may appoint a commission to examine him and report as to his present condition. This may be done upon the application either of the State of the accused through his counsel.
It was such a commission to determine the accused's present mental condition that District Attorney Jerome, upon the basis of the evidence introduced by the defence, applied for and secured during the first trial of Harry K. Thaw. The commission reported that Thaw was sane enough to be tried and the court then proceeded with the original case for the purpose of allowing the jury to say whether he knew the nature and quality of his act and that it was wrong when he shot and killed White.
This was a totally distinct proceeding from the interposition of the DEFENCE that the accused was irresponsible when he committed the crime charged against him and was not inconsistent with it.
Now supposing that the Commission had reported that Thaw was insane at the time of examination and not a fit subject for trial, but, on the contrary, ought to be confined in an insane asylum, the District Attorney would have spent some twenty odd thousand dollars and a year's time of one or more of his assistants in fruitless preparation. Yet, as the law stands on the books to-day in New York, there is no adequate way for the prosecution to find out whether this enormous expenditure of time or money is necessary or not, for it cannot compel the defendant to submit either to a physical or mental examination. To do so has been held to be a violation of his constitutional rights and equivalent to compelling him to give evidence against himself.
Thus when Thaw came to the bar at his first trial the State had never had any opportunity, through an examination by its physicians, to learn what his present condition was or past mental condition had been. The accused, on the other hand, had had over six months to prepare his defence and had fully availed himself of the time to submit to the most exhaustive examinations on the part of his own experts. The defendant's physicians came to court brimming with facts to which they could testify; while the State's experts had only the barren opportunity for determining the defendant's condition afforded by observing him daily in the court room and hearing what Thaw's own doctors claimed that they had discovered. There was no chance to rebut anything which the latter alleged that they had observed, and their testimony, save in so far as it was inconsistent or contradictory in itself, remained irrefutable.
There is probably no procedure which would be held constitutional whereby a compulsory examination of the accused could be had upon the mere application of the prosecuting authorities; but as a commission may generally be appointed at any time after an accused has been indicted if he "appears" to the court to be "insane," and as it is usually within the power of the District Attorney where such is the case to bring sufficient evidence of it to the attention of the court before the prisoner is brought to trial, little time is actually lost and justice is rarely defeated except in those cases (such as Thaw's) where an attempt is to be made to prove the accused insane at the time of the alleged crime although sane at the time of trial. Even here it would be the simplest thing in the world to remedy the difficulty and the proper legal steps in all jurisdictions should be taken immediately.
The two chief objects of such reforms should be, first, to relieve the ordinary jury in as many cases as possible from the necessity of passing upon the delicate issue of a defendant's mental condition at a previous time, and second, where this may not be avoided, to make their task as easy as possible by providing (a) a more scientific and definite test of legal responsibility and (b) an opportunity for adequate examination of defendants availing themselves of this defence.
This last and most practical reform can be easily secured by a slight alteration in the New York Code of Criminal Procedure, which already provides both for the entering of the specific plea of insanity and for the introduction of the defence and the proof of insanity under the general plea of "not guilty." At present the defendant has his choice of openly announcing or of concealing until the trial his intention of claiming that he was insane and so irresponsible for his crime. This is an advantage the results of which were probably not fully contemplated by the Legislature, and one to which an accused has no fair claim.
Fortunately, in the same section of the Code (658), which provides that the court may appoint a Commission to inquire into the sanity of a defendant at the time of his trial, there exists another provision, hitherto little noticed, that:
"When a defendant PLEADS INSANITY, as prescribed in Section 336, the court in which the indictment is pending, instead of proceeding with the trial of the indictment, may appoint a commission of not more than three disinterested persons to examine him and report to the court as to his insanity at the time of the commission of the crime."
If a defendant intends to prove himself irresponsible for his offence, why should he not be compelled to enter a specific plea to that effect? Once he has entered that plea, the law as it stands just quoted will do the rest. No reason has been brought to the attention of the writer why the admission of any evidence upon the defendant's trial tending to show that he was mentally irresponsible at the time of committing the crime should not be made contingent upon the defence of insanity having been specifically pleaded either at the time of his arraignment or later by substitution for or in conjunction with the plea of "not guilty." This would deprive him of no constitutional right whatever. There is no legal necessity of permitting an accused to prove insanity under a general answer of "not guilty." Then upon his own plea that he had been insane he could instantly be committed to some place of observation where a permanent medical board of inquiry could be given full opportunity to examine him and study his case with a view to determining his present and past mental condition. He would still have in prospect his regular jury trial, but if this board found him at the present time insane, the court could immediately commit him to an asylum pending recovery, precisely as under the present procedure, while if they found him sane at the present time, but reported that, in their opinion (whatever test, "medical" or "legal," they might have applied), he was irresponsible at the time he committed the crime, it is unlikely that any prosecutor would bring him to trial. If, however, they reported that he was not only sane, but had been sane at the time of his crime, it is probable that any proposed defence of insanity would be abandoned, while if it was still urged by the accused, the opinion of such a board would carry far greater weight at the ultimate trial of the case than the individual opinions of experts retained and paid by either side for that particular occasion only, and having had only a comparatively limited opportunity for examination. At any rate, if the court called in the services of such a board of medical judges to assist as amici curie in determining the defendant's condition, while their opinion would not be conclusive upon the jury, it would at least do away with the present lamentable necessity of learned men answering "yes" or "no" to a hypothetical question fifty thousand words long, when the most superficial personal examination of the accused would settle the matter definitely in their minds. Such a procedure is in general use in Germany and other continental countries, and is likewise substantially followed in Massachusetts, Maine, Vermont, and New Hampshire.*
* Another equally efficacious means of dealing with the matter would be to substitute, upon a defendant's plea of insanity, a full jury of experts-like any "special" jury-for the ordinary petit jury.
There is good reason to hope that we may soon see in all the states adequate provision for preliminary examination upon the plea of insanity, and a new test of criminal responsibility consistent with humanity and modern medical knowledge. Even then, although murderers who indulge in popular crime will probably be acquitted on the ground of insanity, we shall at least be spared the melancholy spectacle of juries arbitrarily committing feeble-minded persons charged with homicide to imprisonment at hard labor for life, and in a large measure do away with the present unedifying exhibition of two groups of hostile experts, each interpreting an archaic and inadequate test of criminal responsibility in his own particular way, and each conscientiously able to reach a diametrically opposite conclusion upon precisely the same facts.
CHAPTER XI. The Mala Vita in America
There are a million and a half of Italians in the United States, of whom nearly six hundred thousand reside in New York City-more than in Rome itself. Naples alone of all the cities of Italy has so large an Italian population; while Boston has one hundred thousand, Philadelphia one hundred thousand, San Francisco seventy thousand, New Orleans seventy thousand, Chicago sixty thousand, Denver twenty-five thousand, Pittsburg twenty-five thousand, Baltimore twenty thousand, and there are extensive colonies, often numbering as many as ten thousand, in several other cities.
So vast a foreign-born population is bound to contain elements of both strength and weakness. The north Italians are molto simpatici to the American character, and many of their national traits are singularly like our own, for they are honest, thrifty, industrious, law-abiding and good-natured. The Italians from the extreme south of the peninsula have fewer of these qualities, and are apt to be ignorant, lazy, destitute, and superstitious. A considerable percentage, especially of those from the cities, are criminal. Even for a long time after landing in America, the Calabrians and Sicilians often exhibit a lack of enlightenment more characteristic of the Middle Ages than of the twentieth century.