United States v. Robert Lyons

ALVIN B. RUBIN and JERRE S. WILLIAMS, Circuit Judges, with whom POL-ITZ, TATE, and HIGGINBOTHAM, Circuit Judges, join,

concurring in part and dissenting in part:

The sole issue raised by the appellant, Lyons, and by the appellee, the United States, is whether iatrogenic narcotics addiction alone may constitute a mental disease or defect sufficient to support the defense of insanity in a criminal prosecution. The court ranges far beyond this narrow issue. It uses this case as a vehicle to reconsider and to redefine the scope of the insanity defense, although such a reconsideration and redefinition was not asked for in the district court or in this court by either of the parties. We are constrained to dissent from this serious misadventure in the judicial process.

We agree with the conclusion the court reaches in Part I of its opinion that drug addiction alone is insufficient to support an insanity defense. We reach that conclusion, however, through a different route, which does not require the overruling of United States v. Bass, 490 F.2d 846 (5th Cir.1974).

A review of the precedents in this circuit concerning narcotics addiction and the insanity defense must begin with Bailey v. United States, 386 F.2d 1 (5th Cir.1967), cert. denied, 392 U.S. 946 , 88 S.Ct. 2300 , 20 L.Ed.2d 1408 (1968). In Bailey , the defendants were charged with various crimes relating to the purchase and possession of narcotics. As in Lyons’ case, their theory was that addiction is itself a disease or defect that creates a compulsion to procure and to use narcotics, and that one acting under such a compulsion should not be held criminally responsible. Id. at 3 . Their proffer consisted of their testimony that they were “addicted to narcotics, had been unable to cure [their] addiction, and could not resist the daily use of the [narcotics].” 386 F.2d at 3 . At that time this Circuit was still applying the earlier insanity rule, as articulated by the Supreme Court in Davis v. United States, 165 U.S. 373, 378 , 17 S.Ct. 360, 362 , 41 L.Ed. 750 (1897), derived from M’Naghten’s Case, 8 Eng.Rep. 718 (1843). That test, in essence, exculpates a defendant who, because of mental disability, is incapable of distinguishing between right and wrong, or is unable to control his conduct. See Blake v. United States, 407 F.2d 908, 913 (5th Cir.1969) (en banc). While the Bailey defendants urged us to adopt the American Law Institute’s Model Penal Code standard, we held that the case was not “a proper vehicle for reexamination of [the appropriate insanity standard] for the reason that the issue of criminal responsibility was not raised by the evidence.” 386 F.2d at 3 .

Our opinion in Bailey recognized that, according to the weight of authority, “a mere showing of narcotics addiction, without more, does not constitute ‘some evidence’ of mental disease or insanity so as to raise the issue of criminal responsibility.” Id. at 4 (quoting Heard v. United States, 348 F.2d 43, 44 (D.C.Cir.1965)). Moreover, we expressed doubt that addiction to narcotics actually deprived the addict of the ability to obey the law: “It would appear that an element of reasoned choice yet exists when an addict knowingly violates the law in acquiring and using drugs. One is not excused for offending simply because he wanted to very, very badly.” 386 F.2d at 4 . Finally, we noted in Bailey that Congress had passed laws designed to assist the criminal offender addicted to narcotics. The Narcotic Addict Rehabilitation Act of 1966, 1 provides for civil commitments of addicts or for sen *251 tences requiring treatment. Because Congress had thus acted specifically to define the proper treatment of narcotics addicts convicted of crime, we were reluctant in Bailey to fashion a different remedy through the insanity defense. Bailey , therefore, stands for the proposition that narcotics addiction alone is insufficient evidence of a mental disease or defect to raise the issue of criminal responsibility. Cf Doughty v. Beto, 396 F.2d 128 , ISO (5th Cir.1968) (evidence of alcoholism, without more, does not create constitutional defense for one convicted of theft).

The majority opinion suggests that Bailey may have been limited or overruled by our later decisions in Blake v. United States, 407 F.2d 908 (5th Cir.1969) (en banc), and United States v. Bass, 490 F.2d 846 (5th Cir.1974). The members of the panel that initially heard this case shared that view, thought the interpretation undesirable, and suggested en banc review to modify or to clarify the holdings of Blake and Bass . We need not here discuss the exact reach of those two decisions because, sitting en banc, we are not bound by them. Whatever might be their scope as applied to other contentions, however, neither Blake nor Bass is inconsistent with the Bailey court’s conclusion that addiction alone is not enough to raise the insanity defense. And that is the sole issue pressed before us: that evidence of iatrogenic addiction suffices to require presentation of the issue of criminal responsibility to a jury.

In Blake we adopted the Model Penal Code definition of the insanity defense. We did not, of course, discuss whether proof of narcotics addiction of itself would suffice under our newly adopted test. But Blake did not qualify Bailey . In Bailey we had expressly refused to consider adopting the Model Penal Code standard, not because we disapproved of it in any way, but because we concluded that under any test narcotics addiction alone was insufficient to constitute insanity and to negate criminal responsibility. 386 F.2d at 3 .

Moreover, in United States v. Tsoi Kwan Sang, 416 F.2d 306 (5th Cir.1969), decided after Blake , we reaffirmed our holding in Bailey . We held that the defendant had produced evidence sufficient to warrant submitting the issue of insanity to the jury. We stated specifically that “the opinion of the court ... did not conflict with [.Bailey because] ... the evidence of insanity [went] well beyond mere addiction.” Id. at 310 (on petition for rehearing and rehearing en banc).

United States v. Bass, supra, overruled at least in part by the majority opinion, did not involve a claim of an insanity defense based\upon narcotics addiction alone. The defendant suffered from an acutely painful and incurable disease. Around the time of the indictment, Bass had suffered several fevers that, in the opinion of one doctor, had inflicted temporary brain damage. Bass suffered from “chronic anxiety,” and had discussed suicide. We held that he had made an initial showing of insanity sufficient to shift the burden of proof to the government. But we did not rest our holding on narcotics addiction alone. Indeed, we did not even rely primarily on narcotics addiction:

Both treating doctors testified that Bass’ chronic anxiety, which was caused by an awareness that his disease was incurable and that he would forever be dependent on Demerol for relief from pain, constituted a ‘mental disease or defect’ as required by the Blake test.

Id. at 850 (emphasis added). Our holding in Bass , therefore, is not inconsistent with Bailey . As in Tsoi Kwan Sang , the evidence of insanity went “well beyond mere addiction.”

These cases establish a relatively clear standard. Bailey holds that narcotic addiction alone is insufficient tmxaise the insanity defense. Tsoi Kwan Sang and Bass make it clear that addiction, when accompanied by evidence of mental disease or defect, may suffice for an initial showing of insanity.

It thus is well-established in this Circuit, as well as elsewhere, that narcotics addic *252 tion alone does not constitute a mental disease or defect for purposes of the insanity defense. If this were not already clearly the law of the circuit, we would join in an unequivocal clarification en banc. But that would not alter the result as to Lyons. The contention he presents is that iatrogenic addiction stands on a different footing from voluntary addiction. Our opinion in Bass did not rely on the involuntariness of the defendant’s addiction. Because the extent of the mental incapacity represented by narcotics addiction is exactly the same whether voluntarily or involuntarily induced, we see no reason to create a distinction on that basis.' As we said in Bailey , “[i]t would appear that an element of reasoned choice yet exists when an addict knowingly violates the law in acquiring and using drugs.” 386 F.2d at 4 .

We do not, therefore, dissent from the basic conclusion reached by the majority in Part I of its opinion that evidence of narcotics addiction standing alone is not sufficient to warrant a trial court’s submitting an insanity defense to the jury. Nor, had the argument been made on appeal that the proffer’s purpose was to show the existence of a mental disease or defect, to be evaluated under the Bass standard, would we dissent from a reversal for the purpose of receiving that evidence. But these statements establish the grounds for our dissent: Having decided the question that disposes of this case, the majority undertakes to examine an issue neither raised in the trial court, tendered by the parties on appeal, nor suggested by the panel.

This case simply does not require redefinition of the insanity defense. The proffer did submit that Lyons’ drug usage might have affected his brain “both physiologically as well as psychologically,” and this, conceivably, might be read to suggest the existence of a disease or defect. But Lyons did not make this contention on appeal, and the government did not choose to focus its reply to Lyons’ appeal on the impropriety of the existing standard; it chose instead to argue that he had failed to offer evidence sufficient to meet that standard. 2 The government’s position was surely correct. Lyons’ proffer did no more than state the undisputed conclusion that drug consumption has an impact on the brain’s physiology. Were the presence of some effects on the central nervous system dispositive, then every addict would be able to establish an insanity defense. Cf. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (DSM III) 163 (3d ed. 1980) (individuals who have substance use disorder will, at times, manifest direct acute or chronic effects of substances on the central nervous system). The majority’s affirmation of the rule that addiction alone does not invoke the insanity defense therefore disposes of Lyons’ appeal.

The majority’s strained reading of the record and caselaw hardly justifies its self-appointed mission of redefining the insanity defense. That mission is as unwise as it is unnecessary. As the government’s lawyer observed during oral argument to the en banc court, this is an inappropriate case and an inopportune time for such an exercise.

There is now substantial ferment concerning the insanity defense. See the summary in Dutile & Singer, What Now for the Insanity Defense?, 58 Notre Dame L.Rev. 1104 (1983). Congress is evaluating proposals for change as it considers comprehensive legislation to revise the United States Criminal Code. See, e.g., 41 Cong. Quarterly 633 (1983) (administration proposals). The American Bar Association House of Delegates, at its meeting in February 1983, established an official American Bar Association policy recommending a change in the standards and burden of proof with respect to the insanity defense.

*253 69 A.B.A.J. 426 (1983). A further change in American Bar Association policy is anticipated to be on the House of Delegates agenda at the annual meeting of the Association in August 1984. This proposal would revise or define the words “mental disease or defect”. Part II of the opinion for the Court adequately demonstrates additional controversy as to possible modifications of the insanity defense. Considering all of these circumstances, including the possibility of Congressional action, the court’s eagerness to depart from the standards that have been adopted in every federal court over almost two decades 3 is especially inappropriate.

When the evidence in a case squarely raises a question concerning the continued applicability of the volitional test to the definition of insanity, it will be our duty to consider that issue. But the policies embodied in the prerequisites to the insanity defense are too fundamental and too critical to be resolved in the abstract. Considering it sua sponte en banc, the majority demonstrates a complete lack of appropriate judicial self-restraint. Concurring in Part I of the opinion, we would affirm the result reached by the district court. We dissent from all of the obiter dicta that constitutes the rest of the opinion.

Because the majority opinion does redefine the standards that determine criminal responsibility, Judge Rubin will hereafter file a dissent from the adoption of a test that would permit the criminal law to be used to punish persons who lack any ability to conform their conduct to the law, and would thus by judicial redefinition convert our criminal legal system into one of punishment without fault.

. 28 U.S.C. §§ 2901-2906 , 18 U.S.C. §§ 4251-4255 .

. The government initially confined its arguments to those described above. Once the court’s questions and solicitation of amici briefs indicated which way the wind was blowing, however, the government of course reset its sails accordingly and filed a second supplemental brief advocating abolition of the volitional prong. It is also suggesting legislation to accomplish that end. See text, post. Given a way to achieve its objective, it will tread either path.

. See United States v. Currens, 290 F.2d 751 (3d Cir.1961); Wion v. United States, 325 F.2d 420 (10th Cir.1963), cert. denied, 377 U.S. 946 , 84 S.Ct. 1354 , 12 L.Ed.2d 309 (1964); United States v. Shapiro, 383 F.2d 680 (7th Cir. 1967) (en banc); United States v. Chandler, 393 F.2d 920 (4th Cir.1968) (en banc); United States v. Smith, 404 F.2d 720 (6th Cir.1968); Blake v. United States, 407 F.2d 908 (5th Cir. 1969) (en banc); Wade v. United States, 426 F.2d 64 (9th Cir. 1970) (en banc); United States v. Frazier, 458 F.2d 911 (8th Cir. 1972); United States v. Browner, 471 F.2d 969 (D.C.Cir.1972) (en banc); United States v. Figueroa, 666 F.2d 1375 (11th Cir. 1982) (following Blake v. United States). Although the First Circuit has not explicitly taken a position, that court has suggested its approval of the ALI test. See Beltran v. United States, 302 F.2d 48, 52 (1st Cir. 1962) (citing United States v. Currens, supra).