Recidivism regarded from the Environmental and Psycho-Pathological Standpoints

Sutherland, J. F. (1908) Journal of Mental Science, 54, 288–290

There is little use in going back a century to Lord Hales' test of responsibility, viz., that in order to exempt from punishment there must be total deprivation of understanding and memory. It is discredited by jurists as well as alienists. Lord Mansfield's attitude to the test in 1812 is a decided advance on Hales' in so far that to be answerable the accused must possess a mind capable of distinguishing right from wrong generally, and not in relation to the particular act. But in 1843 the point was again raised in an acute form, and the House of Lords propounded certain questions to the judges with reference to the law of insanity with the view to an authoritative exposition which would in future guide courts of justice. These answers, constituting the law of England upon the point, were to the effect that to establish a defence on the ground of insanity it must be provide that at the time of committing the act the accused was labouring under such a defect of reason 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. The question of right and wrong in the abstract is here abandoned. It was to be put, not only in reference to the particular act charged, but also at the time of committing it. Some jurists, and most alienists, are dissatisfied with the insanity test as it stands, but, whatever individual views may be of the criminal law in relation to responsibility thus laid down, it must be apparent to the most ordinary observer that by the acceptance of the authorised test itself, the intoxicated authors of crime, especially homicides, manslaughter, serious assaults, and these form 80 per cent. of such crimes – implying violence and recklessness, would not be held responsible – there is no gainsaying that – and would either be dealt with as insane or punished by long confinement in prison; in either case society would be protected against such potentially dangerous elements in its midst.