Commonwealth v. Woodhouse

*264 Dissenting Opinion by

Mr. Justice Bok:

I would abolish the M’Naghten Rule.

It is not the Act of any Legislature, it is not the decision of any court, and it is not the concept of an American mind. It was an advisory opinion given by the British Law Lords in 1S43 at a time when the life of the Sovereign and her consort had been threatened, and it grew directly from an unsuccessful attempt upon the life of the Prime Minister. It was conceived by disaster, born of excitement, and nourished in fear. It has, however, fastened like a leech upon American jurisprudence.

The Rule is not used in any other field where mental competence is at issue. When a commission in lunacy is had or proceedings are taken against a person for the appointment of a guardian, the point of inquiry is not whether the patient knows right from wrong but whether he is mentally ill or incapable of handling his property and affairs and is likely to become the victim of designing persons. The Rule does not apply even when the issue is whether he is mentally capable of standing trial and making his defense. The concern of The Mental Health Act of June 12, 1951, P. L. 533, 50 PS §1071 et seq., with regard to those accused of crime is with mental health, not with right and wrong. Why should the law’s purpose be different with those convicted of crime?

If our system of criminal law and penology has a purpose, it cannot be other than to protect society. As Sir Matthew Hale said: “That in business capital [which was most of business criminal in his day, since 17th Century England had 350 capital offenses], though my nature prompt me to pity, yet to consider there is also a pity due the country.”

This is precisely where the law has failed in dealing with crime and criminals. With our national law *265 enforcement officials declaring that the recidivist rate for the country is 60%, we cannot argue that the law successfully protects society. Every time a judge calls attention to the current crime wave he is saying that we are failing to cope with it, and the long and painful history of penology shows that merely giving longer sentences increases crime and does not diminish it.

It may not be possible to prevent a man’s first crime, but it should be possible to prevent his second. I do not favor psychiatrists in the courtroom, though every defendant has a right to summon them if he pleases. I favor combatting crime by keeping a felon in prison, regardless of his offense, until he has been shown to be criminally harmless and no longer a menace to society. This should be done by a consensus of our best medical, legal, sociological, and lay brains: I do not favor his release by the action of a board of psychiatrists.' If he remains a menace, he should be continued in custody indefinitely. Nor should he be kept in custody beyond the time when he is safe to return to the free community. The law recognizes this principle by providing that when the defense of insanity is successful the defendant shall not be released but shall be continued in custody until he has recovered.

While in prison, a man should receive the most intelligent handling to achieve his rehabilitation, whether it be medical, psychiatric, educational, or vocational, as his needs may require. This is exactly what he receives when detained for mental illness.

The majority refuses to move against the Rule because no satisfactory alternative to it has been presented. I believe that none is needed. The Rule is a ready method of qualifying defendants for conviction and imprisonment, but also for their release without regard for their criminal tendencies. To free dangerous people when they should remain locked up is stupid and has the opposite effect of protecting society. The *266 Rule does this and hence is the keystone of a vengeful rather than a curative system. If we release a man from prison without curing him, it is obvious that we did no more than avenge ourselves upon him when we put him there.

The maximum social protection will occur when the judicial and penological processes are separated, when the courts decide whether or not defined anti-social deeds have been done and the prisons decide when it is safe to allow a prisoner to return to live among us. It would of course remain his Anglo-Saxon right at trial to ask a jury of his peers to decide whether under all of the circumstances, including his mental derangement as and if the jury sees it, it would be just to hold him accountable: this was the law of England at one period before M’Naghten. See Rex v. Hadfield, 27 St. Tr. 1281 (1800).

If jurors are, as the Majority unavoidably implies, capable of knowing the difference between right and wrong without being given standards for those terms, they should be equally able, also without given standards, to assess sanity and insanity.

It must not be forgotten that the operative area of the Rule is very narrow. It applies only to the defendant who asserts that he was mad when he committed the crime but has recovered his sanity since. Not many fact-finders are convinced by such an argument. If he asserts insanity at any other time his condition is judged by The Mental Health Act. But such restricted area is not a virtue or a reason for continuing the Rule. It is hard to be mad enough to qualify for its protection, and this makes it the convenient delight of prosecutors. Less obvious is its guarantee of release to technically sane but criminally depraved men at the end of their pat sentences. They should be called “M’Naghten criminals” and they are the most dangerous of the lot.

*267 We must choose between protecting society and punishing prisoners. The progress of penology shows that we cannot effectively do both. Any enforced restraint, followed by treatment benighted or enlightened, feels like punishment to him who suffers it. Punishment is valid only when, as Thomas Aquinas has said, a man accepts it and makes it his own. If he merely endures what is inflicted upon him, it is of little worth.

The courts are under constant criticism for doing nothing about crime. They can do something. They can abolish their own rules, like M’Naghten’s, whose failure cries aloud. The doctrine of stare decisis can remain wholesome only if, among the laws it is allowed to shelter, there are included the quick and not the dead. In the Collected Legal Papers of Mr. Justice Holmes, 1920 , page 139, this appears: “An ideal system of law should draw its postures and its legislative justification from science. As it is now, we rely upon tradition or vague sentiment or the fact that we never thought of any other way of doing things as our only warrant for rules which we enforce with as much confidence as if they embodied revealed wisdom.”

Hence my dissent.