This chapter reviews decision-making in insanity defense trials. The chapter begins with an overview of the variety of legal definitions of insanity in the United States, discussing how these rules provide parameters and shape (or fail to shape) insanity decisions. Various factors related to decision-making in insanity defense cases are discussed, including attitudes toward the insanity defense itself (and how these reflect myths about the insanity defense and its implications), prototypes of insanity, and individual differences of both jurors and defendants. The chapter examines misconceptions of mental disorder and how these might relate to decision-making in these cases and considers the role of decision-makers’ perceptions of punishment in this context. The chapter also reflects on the role of intersecting identities in insanity judgments, provides an overview and synthesis of the current body of research on legal decision-making in insanity cases, discusses limitations to the current literature, provides future directions, and considers legal and policy implications.

Clinicians can play an integral role in the ultimate determination of defendants’ criminal responsibility, given that information gleaned from mental state at the time of the offense (MSO) evaluations influence judges and jurors’ decision-making about a particular case. Such evaluations are particularly complicated due to their retrospective nature, lack of a standardized assessment approach, and variability in criminal responsibility statutes across jurisdictions and time. Yet several legal, clinical, and contextual factors appear to impact clinicians’ decision-making when tasked with these evaluations. In this chapter, we examine the existing literature regarding MSO evaluation referrals, including combined evaluations, to help inform practitioners’ expectations. Next, we review critical components of an MSO evaluation and identify challenges for clinical decision-making. Then we discuss forensic report writing and testifying, as informed by the literature regarding best practices. Lastly, we suggest how field reliability of mental state evaluations might improve through research and policy.

This chapter takes us to the start of the 1930s, to explore the colonial production of knowledge on mental illness in mandate Palestine. It does so not through the writings of any psychiatric expert, but rather the report on the 1931 census and its extensive analysis of the return of the ‘insane’ population. Rooted in a very particular encounter around mental illness – between enumerator and enumerated – the census report’s analysis, and the debates surrounding it, reveals how the question of mental illness could be used to locate both Palestine, and its different communities, in relation to empire, development, and modernity. This chapter eschews the usual focus on identity in relation to the colonial census to instead foreground translation: from myriad terms in multiple languages to the single term – ‘insanity’ – adopted by the report; from the often messy testimonies of the enumerated to the record of the enumerator; and from encounter into theory.

Holmes also presented his thoughts about phrenology and its purveyors in what he called his three “medicated novels,” which also began as serials in the Atlantic Monthly before coming out as books. The first was Elsie Venner, published as a book in 1861. The Guardian Angel followed in 1867 and A Mortal Antipathy in 1885. In these three works, he asks pertinent questions, such as whether people with mental disabilities are morally responsible and are accountable for their crimes. He is bothered by how the insane rarely received proper attention from physicians or compassion and understanding from the public. Another common theme is how mental traits can be transmitted through multiple generations. These were the same issues that the founders of phrenology raised, and he is in agreement with them. Yet he also states that phrenology “has failed to demonstrate its system of special correspondences.” That is, its system of bumps is worthless or, as put by the brilliant Lurida Vincent, “nonsense.” This chapter concludes with what a leading phrenologist wrote about Holmes after he died in 1894. He felt Holmes was a gifted writer, yet, and as might be expected, one very much mistaken about phrenology being a pseudoscience.

Neither Holmes nor Clemens was rejecting everything about phrenology. They were most concerned about phrenology’s craniological tenets – the unsubstantiated idea that small bumps and depressions on the skull can reliably reflect the growth and development of underlying parcels of brain tissue and reveal the organs of mind. They did, however, seem to accept the concept of many independent organs of mind, though not necessarily the ones listed by Gall or others. They also bought into the idea that the front of the brain is more intellectual than its posterior. Additionally, they agreed that character traits are inborn, stable, and run in families and that juries should consider the state of a criminal’s brain. Moreover, neither man had any use for metaphysics. Interestingly, Holmes saw phrenology as a branch of anthropology (broadly defined). As he put it: “Strike out the false pretensions of phrenology, call it anthropology; let it study man the individual in distinction from man the abstraction … and it becomes the proper study of mankind, one of the noblest and most interesting of pursuits.” Twain was also fascinated by the diversity he observed among his fellow human beings, and also felt the family of man deserved further study.

Serial killers tend to score highly on a scale of psychopathy, ticking boxes such as low empathy and glib superficial charm. Another condition that can be tapped to derive insights is anti-social personality disorder (APD). Some reports of the experiences of lust killers point to a split in individual consciousness, sometimes expressed as good versus bad personalities. There can be a sudden flip between these states. This is sometimes conceptualized as dissociation and can be revealed as ‘voices in the head’. It is distinct from psychosis and has not been successful as a plea for mitigation. Characteristics of dissociation include viewing oneself from a distance, having a poor or no memory of the killing (i.e. memory specific to the state at the time of the killing) or seeing a disliked person as the target of the attack. Some serial killers are diagnosed as psychotic.

A lack of self-recognition may point to psychological disorder and self-estrangement, and this chapter tackles the problematic notions of late style and madness in Schumann’s oeuvre. Still, misrecognition, mishearing, and their resulting subjective estrangement is wound throughout Schumann’s oeuvre, from the close of the Op. 35 Kerner cycle and the enigmatic piano miniature ‘Vogel als Prophet’ to the magical mirror scene from Genoveva; in extreme form it is manifested in the depiction of madness in the Andersen setting ‘Der Spielmann’. Most troublingly, the loss of musical self-recognition is epitomised autobiographically in the theme of the late Geistervariationen, with its reworking of an idea found in the slow movement of the Violin Concerto, but one which Schumann misattributed to the spirits of Schubert and Mendelssohn. Yet as I argue at the chapter’s close, the psychological state of the music’s virtual subjects often bear scant relation to anything that can be shown to apply to the actual biographical subject, Robert Schumann. In recognising signs of insanity in Schumann’s music, commentators are often only reading their own presuppositions into it.

Mismanagement of property was always a threat to family survival and patrimonial continuity. Law provided a process by which an imprudent manager could be deemed unfit, even insane (furiosus), and placed under guardianship. While prudence was a quality too slippery to define, it was also generally expected, such that the "prudent man" was a standard of behavior. Here too, things were not simple and conflicts arose, as the sharing economy of the household was under strain by the demands or actions of someone others thought insane.

The fifth chapter examines eighteenth and nineteenth century inheritance laws in India in order to analyze the intersections between state power, gender, and colonial policies of annexation. In particular, I focus on the case of Troup v. East India Company (1857), which involves the estate of Begum Sumroo, one of the wealthiest and most unconventional women in colonial India. Sumroo, who did not have biological heirs, sought to transfer her wealth to her son through adoption. In a case that revolved around the distinction between private and state property for native principalities, the colonial state declared that the Begum’s property was subject to annexation. The annexation inaugurated a series of legal cases that unfolded over the unfortunate life of her adopted heir David Ochterlony Dyce Sombre. Taking the case of Begum Sumroo as my starting point, I explore the ways in which the normativization of western notions of inheritance and property worked to undergird the expansion of Empire. Assertions of colonial sovereignty thus sought to disrupt unruly forms of sexual and social organization in order to more efficiently manage both affective relations and property ownership

A case-study approach of two Irish cases in the mid-1850s drew popular attention to the vulnerability of women under the existing gendered law of divorce and the need for its reform. The 1856 divorce of John Talbot of Co. Roscommon and Mary Anne (néeMacCausland) of Co. Londonderry was highly publicised. The case also raised popular criticism of Talbot for conspiring to be rid of his wife, the ecclesiastical courts and parliamentary divorce. The case coincided with a lunacy panic regarding the incarceration of sane women in asylums; however, in the Talbot case, Mary Anne never regained her sanity after being detained and subjected to a physical and likely sexual attack to allow her spouse to divorce her on the grounds of adultery. This divorce attracted considerable legal attention and prompted calls for divorce to be removed from the parliamentary arena. The Westmeaths, even after decades of litigation, never secured a divorce. A re-reading of Emily, Marchioness of Westmeath, is presented here to restore her to the historical narrative as a divorce law reformer and challenge Stone’s earlier sexist portrayal of her as petty, vindictive and obsessed with women’s rights.

This chapter picks up the historical story in the middle of the twentieth century. Against a background of an enhanced sense of independence and confidence of people and institutions that developed following World War I and World War II, I argue that it was in the middle of the twentieth century, from the 1930s to 1960s, that Australian criminal law came into its own – measured in terms of an orientation around national coordinates, and in the self-confidence of its practitioners and academics. I demonstrate that, with close reference to the decisions of English courts, and commentaries such as that of Glanville Williams – and, increasingly over the period, to US developments like the Model Penal Code – Australian lawyers and commentators came to forge an independent path for the criminal law in the mid-century. Working over and above developments that occurred within state jurisdictions, and across code and common law modes of criminal law, practitioners and scholars were thoroughly engaged in a global debate about the development and improvement of the law of crime, and in a complex and subtle negotiation between what Australia shared with others, and what might be thought mark it out. In the mid-century, it became possible to think about Australian criminal law as such, to conceptualise Australian criminal law as a meaningful idea.

This chapter is based on descriptions of three mentally disordered offenders. The first had a history of severe traumatization and the second suffered from a psychotic illness. They were both sent to prison and both committed suicide. The third suffered from Asperger syndrome and was sent to a secure psychiatric facility. I argue that the two deaths arose from a prescientific, retributive response to crime that was wholly inappropriate in these individuals. In the case of the trauma victim, the system responded by inflicting further trauma on her. The tragic outcome in the psychotic offender arose from the application of a legal definition of insanity that does not allow for complex clinical realities. I conclude that these cases point to a need to move from a retributive response to crime to one based on achieving the best outcomes for victims, offenders, and society. Legal concepts and definitions of insanity should be dropped. Instead, we should adopt an approach that is therapeutic rather than punitive in all cases where mental disorder has been a necessary causal factor in the commission of the offence.

The two instruments the state uses to maintain order are the corrective and the preventive. Those who reject the notion of moral responsibility either prefer to abandon punishment in favor of preventive techniques or seek to justify (nonretributive) punishment. Although I think punishment is essentially retributive and cannot be justified, I also think we must, if possible, avoid yielding to the preventive worldview. We must distinguish the lengths to which we are willing to go with incompetent or irrational individuals who are dangerous from the lengths to which we are willing to go with rational and competent offenders. My view is that borrowing from punishment its harsh methods we maintain the dignity of competent offenders when we subject them to these methods with the aim of leading them to abandon the defective motivational traits that resulted in the crime. I call this approach correction rather than punishment, because it lacks the retributive element that makes punishment punishment. Here I suggest how this view might be defended if we start, as Fichte does, from the assumption that those who violate any law deserve to be made outlaws; in current terminology, to be subjected to preventive detention and preventive techniques generally.

Chapter 2 relies upon descriptions of what jurors found not to be felonious to draw conclusions about the meaning of felony in the medieval English legal context. Perhaps because the law was not heavily theorized, or perhaps because these are complex matters with which we still struggle in modern jurisprudence, medieval English felony law was tested by particular circumstantial elements that made a simple guilt or innocence determination difficult for jurors to reach. The chapter’s discussion of the paradigm of felony relies primarily on analysis of the categories of accident, self-defense, insanity, infancy, and duress. This paradigm, unmistakably influenced by notions of mind rather than reflecting a mere category of criminal acts, might be summarized as follows: a crime involving deliberation and rationality, the exercise of a person’s will in the absence of countervailing necessity, and an act that was wrongful and perhaps essentially wicked. Surely not all felonies fit this paradigm, but a pattern does emerge from a close reading of the plea rolls alongside literary texts.