So Look, Are You Nuts Or What?

That’s not a bad question, actually, and one that’s rather, well, fraught. It gets asked a lot in criminal court, where everything turns on an answer that has little to do with science or the modern practice of psychiatry. I suspect many would be surprised to learn the extent to which people who’re obviously and verifiably more than half a bubble off plumb are nevertheless deemed perfectly sane, when it comes to legal liability, an issue that has vexed our criminal justice system for a long, long time. It’s a fascinating problem, really, so much so that years ago I went a little overboard and wrote a 15,000 word paper about it, back when I was in law school.

This comes up because Kathy and I were watching an episode of 20/20 last night that recounted the predations of the infamous “BTK” serial killer, who murdered 10 people in Kansas beginning in the 1970s (we’re total suckers for network “true crime” stories, especially the numerous episodes of Dateline in which some dumbass murders his wife and thinks he’s a master criminal who’ll get away with it). I’d never heard of this “BTK” guy. His pseudonym made him sound more like a sandwich than the Boston Strangler, but neither it nor he was anything close to a joke – “BTK” was the handle he gave to himself in his taunting, Ripper-like letters to the police and newspapers, and stood for “Bind, Torture, Kill”, his preferred M.O. Unlike others of his ilk, he didn’t really have a “type” or much care who he killed, young, old, little boy, married woman, whoever, they were all fun. He liked to strangle his victims, all up close and personal.

He was, obviously, a monster, but he also turned out to be an ordinary guy with an ordinary family named Dennis Rader, who prior to his capture worked all the while in an ordinary job as a sort of municipal by-law enforcement officer in the ordinarily peaceful, placid town of Wichita.

The show featured an interview with this guy’s daughter, who was all grown and married by the time her father was caught and prosecuted, and who, until that happened, hadn’t the merest clue what Pops had been up to in his spare time. Nobody did, not his wife, not anybody he knew or worked with, not anybody at the church where he was a leading parishioner, nobody. Those around him were neither obtuse nor wilfully blind, it’s just that nobody had even the merest reason to suspect anything; when I describe Rader as “an ordinary guy”, what I mean is that this guy was so affably ordinary and apparently well adjusted, leading such a hum-drum but stable and respectable life, that nobody would ever intuit that he liked to drive around in his off hours and select folks at random for extermination. This is him:

The police figured they had to be looking for a stereotypically crazed madman, probably unkempt and reclusive, no doubt with weird looking eyes and a habit of mumbling gibberish while laughing at his own private jokes. He was likely one of those creepy “quiet guys” who kept to himself, or maybe a whack job who lived out in the wilderness somewhere, like Charles Manson, or the Unibomber. When they finally caught up with him, it was almost disappointing. They’d come to slay a fiery dragon, and instead found themselves cuffing a rather docile toad of a man.

The interviewer asked the poor daughter, who seems to have handled all this better than you’d expect, considering, whether her father was sick in the head, or just evil. She responded, one supposes unwittingly, with an answer that was absolutely in line with prevailing legal theory: “I think he was mentally ill, but he wasn’t insane”. Just so. That truly is the nub of it.

For over a 170 years, now, our system of criminal law has struggled with the moral distinction between sick people so feeked in the head that they shouldn’t be held responsible for their awful actions, and simply awful people, also sick, who should. The dilemma lies in coming up with a formula that doesn’t excuse everybody who’s got a screw loose, or worse, equate the mere propensity for unspeakable evil, the capacity to do things that are obviously the product of a mind that must in some sense be ill, with what we’re willing to call legal insanity.

“Insanity” is not a term with any meaning in the psychiatric sciences. It’s a purely legal construct which, for the purposes of crime and punishment, could be expressed colloquially as “so batshit crazy that we can’t really blame you”. In trying to establish objective criteria for this level of batshit crazy, our law, despite many attempts in many jurisdictions, has never been able to do much better than the “McNaghten Rule”, as articulated in a 19th century case involving a political assassination.

McNaghten was a very troubled Englishman who, believing that Her Majesty’s Government had dedicated itself to his particular destruction, decided to murder Prime Minister Robert Peele. To him, it wasn’t so much revenge as a pre-emptive strike, and modern psychiatrists, reviewing his reported statements and behaviour, have no trouble diagnosing McNaghten as a paranoid schizophrenic. Around 1840 or so, tormented by his demons, he took a shot at the P.M., missed and killed a bureaucrat named Drummond instead, and was promptly arrested, at which point it became obvious to everybody concerned that he was barking mad. Ah, but was he so stark raving bonkers that he shouldn’t be held criminally responsible? If so, by what generally applicable rule of law, based upon which principles? It was a real poser. Here’s what the court came up with:

…the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of 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.

And here, 180 years later, give or take, is what it says in Canada’s Criminal Code:

Defence of mental disorder

16 (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

No change, really. Something similar is used to this day as the test throughout the Common Law world.

So, what we end up with is a standard that doesn’t give two hoots about how many diagnosable mental illnesses a guy like the BTK killer might have. He can be a complete bag of toys, and still be perfectly competent to stand trial and be responsible for his actions. He can be afflicted with half the DSM-V without changing his legal status in the slightest. What matters is whether, sick bastard that the perp undoubtedly was, he was still quite lucid as to what it was he’d been doing, and knew it to be against the rules. To get off, you had to be not merely twisted, but deluded, and so deluded, moreover, that it wasn’t just the surrounding circumstances you were wrong about, but the factual nature of what you’d actually done as a result.

This is highly unsatisfactory, of course. A guy could be hearing the voice of Satan telling him to kill the poor slob next door, and still not be “insane”, on account of knowing that Satan is ordering him to murder somebody, which is against the law. You might have multiple personality disorder, but if the personality that surfaced to commit murder knew what it was doing, sorry, you’re perfectly sane. Nutty as a fruitcake, sure, but sane.

This may seem rather an odd way of looking at it, but the Hell of it is that try as we might, we can’t do better than the old rule. Give it a go. I did, back in law school. It’s hard. You see, all sorts of horrible crimes are committed by people afflicted by mental illnesses of one sort or another, which illnesses undoubtedly played some role in their criminal behaviour, yet not, intuitively, to the extent that most people would perceive justice in letting the offenders off the hook. A mom who drowns all five of her kids in the bathtub may turn out to be clinically depressed, so profoundly that she reckoned it was all for the best. A guy who kills his antagonist in a bar fight might have a genuine psychiatric impairment of his impulse control, “explosive personality disorder”, say. The axe-murderer might know the voices in his head are evil and telling him to do evil things, yet be so mortally afraid of them that he does as he’s told. And so on. How to assess the moral effect of the disease upon the actor, when the actor well understands the crime? Just how depressed is depressed enough? At what point are you actually incapable of controlling your impulses? When is it understandable that you heeded the evil voices? For that matter what, exactly, is the difference between evil and nuts? Who’s to say? How do you prove it? Truly, any attempt to codify something that goes beyond the McNaghten Rule leads you very quickly towards a world of imprecise language, slippery slopes, and utter moral ambiguity.

Thus my 15,000 word paper, back in the day. All that research I’d done in law school came flooding back to me as we watched the program, and I remarked to Kathy that BTK’s unfortunate daughter was legally spot on in describing her father as definitely mentally ill, but by no means insane.

As often happens, after over 26 years of marriage, we then gave voice to the same thought at the same time, and recited together my brother Mark’s frankly brilliant lay person’s explication of the McNaghten Rule. Decades ago, Mark boiled it down to its essence by dumping the legalese and putting it in the stark terms of a real world rule of thumb, thusly:

If, when the cops raid your home, you’ve got a human head placed unabashedly in plain view in a pot on the stove, you’re as crazy as a shithouse rat. If, on the other hand, you have the head wrapped carefully in tinfoil and hidden under a big bag of peas in the back of the freezer, you’re as sane as the next guy.

Right.

You really can’t put it any better than that.

By the by, McNaghten himself was found not criminally liable, which was odd, since under the test articulated in his own case he was, like buddy with the head in the freezer, just as sane as the next guy. You might think this a lucky outcome, but actually it merely shifted him from one very nasty cage to another even worse one, in effect. McNaghten was doomed to confinement in one of the era’s appalling mental institutions, there to remain for the duration. He first did a long stint at the Bethlem lunatic asylum, the place that gave our language the word “bedlam”, and died at a newer but still hideous facility called Broadmoor, having been confined for about 25 years. It was thought to be more merciful than hanging. One wonders.