Catherine L. Evans is an assistant professor at the University of Toronto’s Centre for Criminology and Sociolegal Studies and the author of the forthcoming book Unsound Empire: Civilization and Madness in Late-Victorian Law.
Alek Minassian, the 28-year-old from Richmond Hill, Ont., who is now on trial for the murder of 10 people along Toronto’s Yonge Street in the spring of 2018, is a familiar enigma. His lawyers argue that he should be found not criminally responsible (NCR) – what in other jurisdictions, or at other times, would be described as “criminally insane.” NCR status, under Section 16 of the Criminal Code, protects defendants who are “incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong” from criminal responsibility. But what does it really mean to be irresponsible?
Doctors, including Alexander Westphal, a Yale psychologist who has testified in Mr. Minassian’s defence, have tried to pinpoint what exactly is wrong with the defendant. He has been diagnosed with autism spectrum disorder, but its severity and cognitive effects are hard to discern. Suggestions that he displays symptoms of psychopathy or psychosis have been hotly debated. Can defendants be criminally insane if they are not delusional? Is a lack of empathy, of which Mr. Minassian has been accused, a sign of insanity or of evil?
For centuries, we have asked ourselves versions of these questions. More recently, we have turned to medicine. But as much as we would like to seek answers in science, history tells us that we won’t find them there.
In the second half of the 19th century, lawyers and doctors in the British Empire and beyond confronted a strange and disturbing mental illness: moral insanity. Borrowed from French psychiatry and popularized by English physician James Cowles Prichard, moral insanity referred to mental illness in which the patient experienced emotional disturbances without the hallucinations and delusions that had long been hallmarks of insanity. A string of spectacular and controversial trials came after. Psychiatrists took the stand to argue that their clients, accused of chilling and brutal crimes for which they often had a flimsy motive or none at all, were insane and should be acquitted.
Many journalists, policy makers, lawyers and doctors rebelled. Such a definition of criminal insanity would, they believed, produce what one journalist in 1863 called a “revolting paradox”: the worse the crime and the more callous the perpetrator, the lighter the punishment. Another journalist, writing about a woman killed by her former lover, declared that if all men who committed monstrous crimes were insane, then “the occupation of judges and juries would be gone and penal laws a dead letter.” To them and to many more, moral insanity seemed poised to undermine criminal justice as they knew it.
To some, the solution was more and better science. By the end of the 19th century, most murder trials featured evidence by medical experts, especially in “mental science” (psychiatry). In some cases, both prosecution and defence drafted large numbers of psychiatric experts to speak to the defendant’s sanity. The result was often chaos. Faced with so much conflicting testimony, judges and jurors turned away from science and looked inward, trusting their guts and long-standing legal principles to solve the human puzzles before them. Who deserved a capital sentence and who should instead be sent to an asylum? Did moral insanity exist? If it did, what would happen to the law – to society as a whole – if a lack of remorse or conscience justified acquittal?
We can see these debates, more than a century old, playing out once again in Mr. Minassian’s trial. Much ink will be spilled in the coming weeks over the validity and implications of the infamous “Psychopathy Checklist,” created by retired Canadian psychologist Robert Hare. Psychopathy, the direct descendant of 19th-century moral insanity, more often justifies harsher sentences rather than acquittals in Canadian courts. We will also see more controversy about the nature of psychosis – which has historically been the strongest grounds for a successful NCR plea – and whether Mr. Minassian’s autism spectrum disorder could produce a mental state so untethered from reality that we can fairly call him psychotic.
Today, we have fMRI scans, genetic tests, the Diagnostic and Statistical Manual of Mental Disorders and endless checklists. But the history of criminal insanity suggests that science will not, and cannot, determine Mr. Minassian’s fate. Dr. Westphal has reportedly stated that the defendant is stuck at an early stage of the “development of moral judgment” – that is, Mr. Minassian knows, according to the doctor, what he did and that it was wrong but does not truly understand or, crucially, feel the harm he has done. Even if we accept this characterization of his mental state, what should be done next will depend not on 21st-century science but on much deeper and more intractable concerns: matters of the heart, not of the mind.
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