Is mad defence bad?

In Evil or Ill?, Lawrie Reznek, one of the most prolific of the new philosophically trained psychiatrists, takes on what is arguably the Grand National of philosophy and psychiatry, the insanity defence.

As a Rhodes scholar in Oxford in the late 1980s, Reznek combined a training in clinical psychiatry with a DPhil in the philosophy of science. From this came his first book, The Concept of Disease, followed by The Philosophical Defence of Psychiatry, The Medicine Men and a string of articles in academic journals.

Evil or Ill? focuses Reznek's clinical and philosophical skills on a paradox at the heart of the insanity defence: everyone, from Polynesia to Peckham, agrees that severe mental illness is an excuse ("mad not bad", as we say); but no one can agree just why this should be. With other excuses we have no problem. It seems obvious that accident, automatism, physical compulsion and so on, are excuses. But as the social scientist, Baroness Wootton, pointed out more than 30 years ago, it is far from obvious why the man who kills someone he believes to have wronged him is sent to the gallows (the death penalty still being in force), while the man who kills someone he delusionally believes to have wronged him is sent to hospital.

Well, 30 years on it is still "far from obvious". Reznek offers an authoritative update on the issues: besides philosophy, he draws on history, law, politics and social policy. He covers the usual suspects - consciousness, freedom, unconscious motivation and the will; but also paranoia and the paradox of evil, psychopathy and the guilty brain. Anyone wanting a comprehensive introduction to this difficult area need look no further. But this is no mere survey. Reznek has a distinctive spin on the question of evil or ill. What it comes down to is this: in place of the insanity defence we should have a new legal excuse (a new ground of legal exculpation), that of change of character.

This novel and at first sight unpromising proposal is supported by a detailed and sophisticated, if at times somewhat dogmatic, philosophical argument. Punishment, he suggests, is appropriate only for those of "evil character" (those disposed to do evil). Accident, automatism and compulsion, on this view, are excuses because they are all ways in which a person of good character (one disposed to do good) can come to do something bad. And so it is with insanity, Reznek claims. Insanity is "a disorder" that "changes the person's character". Hence insanity, too, is a way in which someone of good character can come to do something bad.

There is much to take issue with in this account. The "evil character" theory of punishment, for a start. Reznek claims that this is justified by both retributivist and utilitarian principles; evil characters deserve punishment and need motivating to change their behaviour. But neither claim seems quite right. So far as motivation is concerned, character is peculiarly resistant to change. This is why "personality disorders" are so often excluded from involuntary treatment in mental health legislation. To the question of "just deserts", punishment has traditionally been justified not for evil character but for evil intent. A person of bad character who accidentally does something bad is excused as decisively as the person of good character.

In support of his defence of "character change", Reznek offers us the story of a young man. Bill is a "thug" who extorts money with threats of violence. One day, he falls in love with Hannah, who works for the homeless. He starts to help her in her work, initially to gain her approval, but then "for its own sake, turning away completely from a life of crime". Suppose, now, Reznek asks, one of Bill's former victims recognises him and brings charges. Should Bill be punished?

Intuitions are divided. Some say yes: he did wrong and deserves punishment (Reznek calls this, in a neat phrase, act retributivism). Others say no: he was an evil character, but is evil no longer (character retributivism in Reznek's terminology). Reznek is with the nays. Bill, he says, "is not (now) the sort of person we want to punish". The law, on the other hand, is with the yeas. Bill's reformed character may be a mitigating factor: it may be weighed in determining the extent of his punishment. But it is not an excuse. It does not exculpate. If he was guilty of the crime of assault when he was an evil character, he remains guilty of that crime notwithstanding his current good character.

Character retributivism appeals to our sense of fair play in a story such as Bill's. But other versions of Bill's story make character retributivism less appealing. Suppose Bill had already been convicted before he met Hannah (now working with prisoners rather than the homeless), should his conviction be quashed (as distinct from, say, his parole being brought forward) on the grounds of reformed character? Or suppose Hannah eventually jilts him and he returns to a life of crime? Is he then, once more, guilty? Could his former victim, having failed to get a conviction before a character retributivist judge when Bill was reformed now go back and get a conviction?

These may seem unlikely scenarios. There is, though, a psychiatric counterpart to this story, that of multiple personality disorder (in North America, dissociative identity disorder). In this disorder, like the fictional Jekyll and Hyde, characters with very different moral dispositions appear to surface at different times in the same body. Reznek considers such cases. What they suggest, though, is that behind his character retributivism there is a more conventional person retributivism. The appeal of multiple personality disorder as an excuse is that the changes in character it involves are so radical as to amount to changes of persons. "Alters", as the alternating characters are called, not only have different moral dispositions, they have different memories, skills, beliefs and intentions: in short a full house of the mental characteristics that mark out one person from another. The significance of all of this is debatable. But if there really were different persons involved, as Reznek and other have argued, there really would be a sense in which one alter is not responsible for the sins of another alter.

Personal identity is just one of the philosophical hurdles on the Grand National course of the insanity defence. In answering the question "evil or ill?", psychiatrists have to negotiate reasons and causes, freedom and determinism, even mind and brain. And unlike philosophers, psychiatrists do have to come to a conclusion, "evil or ill?", "the gallows or hospital?" -an excuse, if it were needed, for sometimes going round the philosophical hurdles rather than over them.

K. W. M. Fulford is professor of philosophy and mental health, University of Warwick.