The Hinckley verdict illustrates three perversities: the most morally indefensible crimes are becoming the most legally defendable. The idea of the individual is being obliterated in order to maximize the rights of the individual. And the quest for the chimera of perfect justice is subordinating the social good, including the rule of law, to the quicksilver axioms of a "science" that is long on pretenses and short on testable assertions.
Seated atop a ramshackle scaffolding of superstitions, merrily minting nouns that denote nothing, many psychiatrists are today condescending to the American people, chiding them for not comprehending the intellectual marvelousness of the Hinckley verdict. But the verdict will serve the social good only if it generates disgust with the incompatible marriage of psychiatry and law. To that end, Americans should read "The Killing of Bonnie Garland," Willard Gaylin's meditation on another trial featuring an insanity defense.
Gaylin, a practicing psychiatrist, argues that the premises and purposes of law and psychiatry are in tension. The premise of the law is that the self is autonomous. The premise of psychiatry is that the self is a cauldron of impulses that determine behavior. The purposes of the law include protecting the social order and expressing its moral sentiments. The purpose of psychology is to explain an individual's behavior. An explanation may facilitate a "cure," but any explanation can be made to seem exculpatory, by diluting to the point of disappearance the idea of responsibility.
The insanity defense is many centuries old, and is indispensable to justice. What is incompatible with justice is the proliferation of categories and gradations of diminished capacity. The old, workable questions were: did the accused know the nature of his act (that he was, for example, shooting a person, not a poltergeist) and did he know it was wrong? Those questions, which do invite psychiatrists' baroque speculations, lead to this conclusion: Hinckley is a very strange, very guilty individual.
Law must assign responsibility. All of psychiatry's permutations of determinism locate "responsibility" somwehere other than with an autonomous "self"--whatever "self" can mean after enough acts and attributes are explained in terms of a yeasty subconscious.
The rule of law requires predictability and regularity: treating like cases alike. But a judicial system that is deferential to psychiatric storytellers invites extreme individuation: no two cases can be alike because each defendant is determined by--or perhaps just is--his idiosyncratic jumble of impulses.
Did a killer act in a rage? If so, "he"--whatever pudding of neuroses that pronoun denotes --was sick. did he kill without passion? Even sicker. He shows no remorse? That clinches it: he is no more "guilty" of his behavior than he would be of appendicitis.
It is an old joke: a person kills his parents and demands mercy because he is an orphan. The joke is now the jurisprudence of "compassion." A crime becomes the ground for evading punishment for the crime. The more odious the crime --premdeditated ("How inhuman!") or spontaneous ("An irresistible impulse!")--the more "reasonable doubt" there is about the person's sanity at the time.
Today Americans have an admirable but unconsummated desire to see the law express, through commensurate punishment, the doctrine of individual rsponsibility and the wickedness of political assassination. The law performs an expressive function. It teaches--ineluctably, for good or ill. The Hinckley verdict does not teach the idea of responsibility on which habits of restraint and moderation depend.
Now the absurdity will be compounded. The trial allowed--indeed, required --a jury to pick between numerous flatly incompatible theories spun by credentialed "experts," theories purporting to divine Hinckley's mental state on one day 15 months ago. Now the same wonderful psychiatric "profession" (the word is barely applicable) that produced a cacophony of loopiness in court, and cannot even define its perishable terms, will dazzle the world by predicting Hinckley's future behavior.
Is he dangerous? The trial verdict means the jury thought it had a reasonable doubt about Hinckley's sanity last year. Surely there can be as much uncertainty about his dangerousness. So let him loose--that is the logic of the process.
Some alarmed lawyers propose restricting psychiatric testimony to statements of "fact"-- what psychiatrists see or hear. But psychiatrists often are hired to put an acre of embroidery around a pinhead of "fact." So they bandy diagnostic categories that are as evanescent as snowflakes, swapping bald assertions with the serenity of philistines operating far from serious intellectual criteria.
Psychiatric "defense" of the individual often obliterates the individual. The "compassionate" treatment of Hinckley causes him to disapppear, leaving only a residue of traits that may or may not be symptoms of this or that "disturbance." Psychiatry as practiced by some of today's itinerant experts-for-hire is this century's alchemy. No, that is unfair to alchemists, who were confused but honest. Some of today's rent-a-psychiatry is charlatanism laced with cynicism.
Much psychiatry is ideology masquerading as medicine. In Aldous Huxley's nightmare of determinism, "Brave New World," when someone commits a crime, the response is: "I did not know he was ill." We are not yet in that mental world, but you can see its suburbs from here.