Through a special lecture organized by Elon Law's Center for Engaged Learning in the Law, held September 17, Texas Tech University School of Law professor Arnold Loewy argued that the insanity defense in murder cases ought to be abolished or extremely narrowly defined.
Loewy, the first Judge George R. Killam Jr. Chair of Criminal Law at Texas Tech University School of Law who also taught for 38 years at UNC School of Law, made his argument by detailing a number of weaknesses in the application of the insanity defense in murder cases.
First, he pointed out that the degree of mental illness in defendants can vary across a broad spectrum, but that the insanity defense artificially creates a set of people who are completely absolved of responsibility in criminal conduct – those deemed insane – and another set of people, regardless of their degree of mental illness if it does not meet the high threshold required for the insanity defense, who are treated exactly like the general population in verdicts and sentencing.
Second, Loewy pointed out that the insanity defense succeeds at different rates depending on defendants’ gender, race, wealth, and age among other variables. He criticized the unequal treatment of defendants based on jurist prejudices in these areas.
“Whites are more likely to be able to raise the insanity defense than blacks,” Loewy said. “Women are more likely to be able to raise the insanity defense than men. The old are more likely to be able to raise the insanity defense than the young. The rich, even discounting their additional resources, are more likely to be able to raise the insanity defense than the poor. Why? Because very typically we believe that poor young black men are committing crimes. ‘If they committed a crime, it’s not because they’re crazy it’s because that’s what they do!’ But a rich white old woman committing a crime, that’s out of character, and so therefore likely to get the insanity defense.”
Third, Loewy critiqued the contradiction in reasoning that allows those raising the insanity defense to avoid criminal prosecution by claiming that God told them or forced them to kill. “There’s nobody I know who thinks the free exercise of religion ought to be a valid defense for murder,” Lowey said. “So we’re forced with the question, what’s the reason that insanity should change the result?”
Using the example of terrorists who claim to be acting as directed by God, Loewy argued that no one, regardless of their degree of mental illness, should be protected from criminal prosecution for an act of murder if they are aware at the time that what they are doing is a criminal act. “I certainly reject ‘irresistible impulse’ because I don’t think we’re capable of distinguishing an impulse that’s irresistible and one that wasn’t resisted,” Loewy said.
In a review of state laws and precedent regarding the insanity defense, Loewy concluded that he most preferred the Utah statute strictly defining the insanity defense, but modified to allow for use of the defense to reach manslaughter verdicts as opposed to murder judgments.
“In sum, it seems to me that since insanity draws these kinds of categorical lines that don’t really fit, tends to exacerbate societal stereotypes, and actually creates a rule whereby insane people who believe in something will be acquitted whereas a sane person believing exactly the same thing would be convicted, I’d either abolish or extremely narrowly define the insanity defense,” Loewy said.
Click here to read more about Arnold Loewy.
The Center for Engaged Learning in the Law (CELL) at Elon University School of Law is intended to contribute to the discourse on improving legal education. Through CELL’s blog and its events at Elon Law, the center is intended to serve as a nexus for law teachers, students, administrators and practitioners to share different perspectives on how learning can be improved in law schools.