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THE LAW IS A ASS for 02/15/2000
DOCKET ENTRY
"The Law is a Ass" Installment # 31
Originally written as installment # 21 and published in Comics Buyer's Guide issue # 546, May 4, 1984 issue
I failed.
Sometime starting in the late 70's, writers decided that mentally ill comic-book villains were far more interesting. After all, crazy villains wouldn't be tied down by silly things like a profit motive, so could do anything the writers wanted them to do. They could be more grandiose, more visual. And, for the most part, a lot less interesting.
I hoped that by writing this column and explaining exactly what insanity was, I could stem the tide.
I didn't. With the advent of Batman: The Dark Knight Returns and comic books snowball descent into "grim and gritty," crazy villains became more commonplace than vomit at Mardi Gras. And about as interesting.
Oh well, you can't say I didn't try.
******
"The Law is a Ass"
Installment # 31
by
Bob Ingersoll
Quick, count to seven and go, "Booga! Booga!"
Insanity strikes every seven seconds.
Yes, I know it's an old joke. And a dumb one. Except in the comic-book universe. Here, as estimates go, "every seven seconds" is fast becoming more conservative than a banker's lapels.
In the last few years we've seen several stalwart comic-book characters go insane. It all seemed to start with the Joker. Denny O'Neal and Neal Adams turned him back into a homicidal maniac and it opened the floodgates. Insanity allows the villains to get edgier, nastier, less concerned with how they'll do in the Grapevine Gazette villains' poll or simple profit motives and more inclined to do something hideously--and visually--nasty just to show they can.
We've seen Dr. Doom lose his marbles, although he seemed to recover them all; except the Aggies. We've watched Rubert Thorne turn from a cagy, deft boss into a caged daft boob who drools and lies in a fetal position in a padded cell. Jason Woodrue is no longer a man, but a sentient sequoia doing human being impersonations six nights a week--with two shows on Wednesdays--at the Desert Palms Hotel. Even the Punisher plays fifty-one card Solitaire. Next someone will probably take a villain as innocuous as Blacklash and give him dipolar disorder.
Let's get down to brass inkblots. Most of the super villains who are called insane by the various writers are not insane. The writers are using insane as if it meant the same thing as mentally ill or incompetent. It doesn't. Insanity is not a medical term, it's a legal term to describe someone who is asserting a specific affirmative defense at a criminal trial, "not guilty by reason of insanity." Doctors don't call their patients insane they call them "Nutsy Fagin."
Seriously, doctors don't even use general terms such as mentally ill, when they can avoid it. Doctors usually describe their mentally-challenged patients in terms of the disorder which afflicts them. A patient is said to be psychotic or delusional or dipolar or schizophrenic. And for the record schizophrenic does not a person with multiple personalities, a la Sybil. A person whose compos mentis is going face to face to face with the three faces of Eve suffers multiple personality disorder, not schizophrenia. Schizophrenia is a personality disorder characterized by delusional thoughts , hallucinations, non-linear thinking and frequently paranoia.
Insanity questions whether a defendant who has a mental illness should be held criminally accountable for actions which violated the law. As such it's not a medical term, but a legal term. At least that's what I was told by the head of the Cleveland Court Psychiatric Clinic, when I was in law school. I figured I'd believe him. After all, he should know and why would he lie to me; unless, of course, he were delusional.
Insanity questions a person's mental state at the time that he or she committed a criminal act. Insanity is an affirmative defense; what we lawyers also call confession and avoidance. An affirmative defense is one in which the defendant admits that he or she did the act for which he or she is on trial, but is still not guilty because the law forgives the act. Self-defense is the best-known affirmative defenses. The person confesses to having killed someone then avoids prosecution by showing the homicide was justified. Insanity works much the same way. The plea says, "Yes I committed the criminal act, but at the time I committed it, I was insane, so I cannot be deemed blameworthy or guilty."
Moral blameworthiness, is the crux of the insanity defense. It posits that an insane man is not morally blameworthy for his illegal acts, so should not be found guilty of a crime. Moral blameworthiness is an important part of our legal system. Our system of justice that doesn't simply confine itself to questions of quilt and innocence. It also concerns itself with moral blameworthiness. Look at self-defense. A man is about to kill you, but you kill him first. Killing someone is against the law. But, because you have a right to defend yourself, our legal system says you are not morally wrong to have killed in self defense. You did an illegal act, but you did not have an evil intent. Therefore you are not morally blameworthy, so we deem you not guilty of a crime.
Moral blameworthiness demands an illegal act coupled with an evil intent. If a man is so mentally ill that he doesn't know what he is doing is wrong, he has no evil intent. Therefore he is not morally blameworthy, so is not guilty by reason of insanity.
Moral blameworthiness also demands a free will, that is a man must be able to choose between doing an illegal act or not doing it. For example, an armed man takes you into a bank and tells you to rob it for him, or else he will kill you. So you rob the bank. Are you guilty of a crime? No. You did not have free will. You didn't have the chance to choose between robbing the bank or not robbing it. The chance to choose was taken from you by the other man That's another of those affirmative defenses. It's called duress.
In the same way, if a mental illness so afflicts you that you cannot refrain from doing something even though you know it's wrong, you do not have free will. It's as if the illness held the gun on you and forced you to commit the crime. Again, the insane man is not morally blameworthy, this time because he did not have free choice. So he's not guilty of the crime.
As long as we have the concept of moral blameworthiness in our criminal justice system--and as I don't think anyone wants to abandon moral blameworthiness, as it would mean sacking self-defense--we must also have the insanity defense. An insane man is not morally blameworthy, so cannot be guilty of a crime. So, for those of you who believe insanity is just another "technicality" or "loophole" we use to get our guilty clients off, it isn't. It's a vital part of our justice system.
But what is insanity? I've hinted around at it above, even given its basic components. But I haven't given you the definition of insanity accepted in the courts of law. That's because there isn't one definition. The definition of insanity varies from jurisdiction to jurisdiction, basically differing on the question of whether the jurisdiction recognizes both the "wrongfulness" test and the "irresistible impulse" test. All states recognize the wrongfulness test, not all recognize irresistible impulse.
As both wrongfulness and irresistible impulse are used, depending on what state you're in, I'll give you both in one simple sentence. (Simple being subjective; remember, we are talking about a legal definition, here.) A person is insane if he commits a criminal act and at the time that the criminal act was committed the person had a mental illness or other defect of the mind that so impaired his reason, that he 1) either did not know that what he was doing was wrong or 2) could not refrain from doing it.
The test has three components. Let's look at each one at a time. Actually there is a forth component, which we must consider, first. There has to have been a crime committed. If there is no crime, there is no insanity question.
Okay, we have a crime. And we have a person who committed the crime (usually referred to as "the actor" in its diagnostic, not it's Oscar-winning, meaning.) How do we test to see if the actor is insane? No we don't ask if he agreed to star in Howard the Duck. It's not that kind of an actor.
And, no, we don't see if he weighs the same as a duck. That's to test to see if he's a witch. Ours is a more scientific pursuit. We put the actor in the dunking stool, if he sinks and drowns, he was insane. If he floats, he wasn't insane, so we stone him as a criminal.
Oh, you want the serious answer. I don't see why, my way is so much more fun. But okay.
We already know whodunit. To see if the who was insane, first we see if, at the time he dunit,
the actor had a mental illness or defect. In other words you get a shrink to diagnosis him as loopy.
This is important, a person who doesn't have a mental illness, cannot be legally insane.
It's also not as difficult as ti sounds. The American Psychiatrists Association publishes a book called, Diagnostic Statistical Manual of Mental Disorders. At the moment, they're up to the fourth volume of this book, so it's commonly called DSMIV. I see no reason to buck the trend, so DSMIV it is. Besides, it will help you to remember that the book gets revised frequently and you have to be using the most resent edition to be sure your diagnosis is accurate.
DSMIV lists every disorder which the APA considers to be a mental illness or defect. The list ranges from paranoid schizophrenia to manic depressive disorders to extreme mental retardation. So if you want to determine if our criminal has a mental illness, just diagnose what he's got. If it's in DSMIV, it's a mental illness. if it's not there, it's not a mental illness.
Really. It's just about that simple. And remember what I said about up-to-date diagnosis? Here's a true-life example Recently in Cleveland we had a much publicized case, where a multiple murderer was attempting the insanity defense. The actor's mental condition was classified as a mental illness in DSMII. But when the book was revised in DSMIII, the American Psychiatrists Association changed its mind and no longer classified the condition as a mental illness. Because his mental disorder was no longer classified as a mental illness in DSMIII, the court ruled that the actor could not be insane.
Okay, so we've got an actor who's bonkers, as opposed to an actor who appeared on Bonkers. Is he insane? Those of you who said yes, haven't been paying attention. We haven't gotten to the second prong of the test yet. He's insane, only if his mental illness so impaired his reason that he didn't know his act was wrong or, in jurisdictions that recognize the irresistible impulse prong, that he couldn't refrain from doing it.
What does it mean that the actor didn't know what he did was wrong? Exactly that. For a change they're all simple English words being used in their most classic form. It means exactly what it says.
Let's look at an example: let's assume that we have a paranoid schizophrenic who suffers from delusional thinking, so believes that things which are not true are true. Let's also assume that our delusional man believes that he owns every pair of stretch socks in the world. Finally let's assume our man hears Reed Richards bragging to Dr. Doom that Reed owns one hundred pairs of stretch socks. Our man thinks, But I own all the stretch socks, so Reed Richards must have stolen his stretch socks from me. I will take them back, because they are mine not his. So the man steals Reed's one hundred pair of stretch socks. When the man stole Reeds socks he didn't know it was wrong, because he honestly believed all he was doing was taking back his own property.
The Punisher, or what they turned him into in Peter Parker, the Spectacular Spider-Man # 83 anyway, is an example of this type of insane character in comics. He broke the law by shooting at several people. But, we were told the Punisher was delusional and believed that he had the right to punish anyone he saw committing any crime. So, in his delusional frame of mind, shooting jaywalkers and litterbugs was not wrong. They had committed crimes, so his delusion told him he had the right to shoot them as punishment. Thus, Punisher's mental illness prevented him from knowing the wrongfulness of his act. he was legally insane.
That is the wrongfulness test of insanity. As I said, every jurisdiction in the United States I know of recognizes this test for insanity. Many, but not all, jurisdictions also recognize the irresistible impulse test. It works as follows: a man has a mental illness which affects his reasoning ability. He may know what he is doing is wrong, but, because of his illness, he cannot refrain from doing the act anyway, irrespective of his knowing it is wrong. His mental illness gives him an irresistible impulse to do the criminal act. So, because he did not have free will, he is not morally blameworthy and is insane.
Two-Face is a comic-book example of someone who suffers from the irresistible impulse form of insanity. Two-Face has a mental illness. Although they've never specifically said which one, I'm going to go out on a limb here and guess Two-Face suffers from multiple personality disorder, with one of his personalities being good and the other being evil. Two-Face's mental illness is such that he believes that his two-headed coin controls his life. When he flips it, if the good side comes up, his good side is in control and he must do good. But if the evil side comes up, his bad side is in control and he must do evil. When Two-Face commits a crime because the bad side of the coin came up, he may know that what he did is wrong, but he can't refrain from his acts. His mental illness puts his bad side in control. He had an irresistible impulse to commit the crime, because he feels he must obey the dictates of his coin.
Remember, not all jurisdictions recognize the irresistible impulse test for insanity. Ohio used to recognize it, but refined its definition of insanity about eight years ago and now recognizes only the wrongfulness test. Remember also, if a jurisdiction recognizes both the wrongfulness test and the irresistible impulse test, a defendant doesn't have to show both existed to prove insanity. It's an "either or" test. A defendant can show either that he didn't know the wrongfulness of his acts. Or he can show, in the alternative that he had an irresistible impulse.
Think you've got it, now? Good. Then go explain it to the courts in your jurisdiction, as most courts still get insanity wrong. To prove to the courts that you do understand insanity, here's a pop quiz. In Fantastic Four # 267 we learn that Otto Octavius suffered a severe head injury, which caused him to become paranoid. He was convinced that others were jealous of his work and were keeping him prisoner. He broke free and became the criminal Doctor Octopus, a psychotic now under observation in a mental hospital. Is Octopus insane?
It's a trick question. You don't really have enough information to make a positive answer. He may have had a mental illness, but we were never shown whether Dr. Octopus was so psychotic that he didn't know wrong from right or couldn't refrain from doing what he did. The fact that he was in a mental institution for observation is inconclusive. People who are mentally ill but not legally insane need treatment, too.
They keep telling us Joker is insane. I'm not sure I buy it. True he's a homicidal maniac, but I've never seen any evidence that he doesn't know right from wrong or can't stop doing what he's doing. Hell, I've never seen any evidence that Joker suffers from a mental illness. From what I can tell, Joker kills, because he likes it.
The Hulk, on the other hand, is insane (The old savage Hulk, that is, not the new intelligent Hulk.) The old Hulk had mental retardation so severe that he had the affective intelligence of a very young child. As the doctors put it, he had the mental age of five. Young children under the age of seven are presumed under the law to be incapable of knowing the difference between right and wrong. Thus the savage Hulk had a mental illness, retardation, which prevented him from knowing right and wrong. Mental illness and inability to know right from wrong. It's insanity.
Thus endith our lesson on insanity. Oh I'm so proud of myself. Three thousand whole words on insanity, and I didn't even mention Vigilante even once!
Damn!
BOB INGERSOLL
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