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Note:
PAGE 1
No. 82-3429
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
731 F.2d 243; 1984 U.S. App. LEXIS 23486; 15 Fed. R.
April 16, 1984
Evid. Serv. (Callaghan) 859
PRIOR HISTORY:
Appeal from the United States District Court for the Eastern District of
Louisiana.
DISPOSITION:
COUNSEL:
(For Am. Psychological Assoc.), Donald N. Bersoff, N.W., Washington, District
of Columbia, (For Am. Bar Assoc.), B. James George, Jr., NW, Washington,
District of Columbia, Joel I. Klein, Am. Psychiatric Assoc., N.W., Washington,
District of Columbia, (For Am. Bar Assoc.), Richard P. Lynch, Director, American
Bar Association, NW, Washington, District of Columbia, (For Am. Bar Assoc.),
Wallace D. Riley, Chicago, Illinois, (For Nat'l Assoc. Crim. Def. Lwys.), Frank
Maloney, Austin, Texas, Amicus Curiae.
John P. Volz, U.S. Atty., Patrick J. Fanning, AUSA, Harry W. McSherry, AUSA,
Sidney Glazer, Dept. of Justice, Ben Franklin Station, Washington, District of
Columbia, Joe Gershowitz, for Appellee.
JUDGES:
* Judges Randall and Davis did not participate in the consideration or
decision of this case.
OPINIONBY:
OPINION:
[*244] GEE, Circuit Judge:
PAGE 2
731 F.2d 243, *244; 1984 U.S. App. LEXIS 23486, **2;
15 Fed. R. Evid. Serv. (Callaghan) 859
Defendant Robert Lyons was indicted on twelve counts of knowingly and
intentionally securing controlled narcotics by misrepresentation, fraud,
deception and subterfuge in violation of 21 U.S.C. @ 843(a)(3) (1976) and 18
U.S.C. @ 2 (1976). Before trial Lyons informed the Assistant United States
Attorney that he intended to rely on a defense of insanity: that he had lacked
substantial capacity to conform his conduct to the requirements of the law
because of drug addiction. See Fed.R.Crim.P. 12.2(a). Lyons proffered evidence
n1 that in 1978 he began to suffer from several painful ailments, that various
narcotics were prescribed to be taken as needed for his pain, and that he
became addicted to these drugs. He also offered to present expert witnesses who
would testify that his drug addiction affected his brain both physiologically
and psychologically and that as a result he lacked substantial capacity to
conform his conduct to the requirements of the law.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Lyons' proffer of evidence is reproduced in its entirety in the panel
opinion. 704 F.2d at 744-47. We merely summarize it here.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**3]
In response to the government's motion in limine, the district court excluded
any evidence of Lyon's drug addiction, apparently on the ground that such an
addiction could not constitute a mental disease or defect sufficient to support
an insanity defense. A panel of this Court reversed, holding that it was the
jury's responsibility [*245] to decide whether involuntary drug addiction
could constitute a mental disease or defect depriving Lyons of substantial
capacity to conform his conduct to the requirements of the law. United States
v. Lyons, 704 F.2d 743 (5th Cir.1983). We agreed to rehear the case en banc.
Id. at 748. n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 For the en banc hearing we invited interested groups to submit amicus
briefs. Several were received, including briefs from the American Bar
Association, American Psychological Association, and the National Association of
Criminal Defense Lawyers, for all of which we are obliged.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
I.
For the greater part of two decades our Circuit has followed the rule that a
defendant [**4] is not to be held criminally responsible for conduct if, at the
time of that conduct and as a result of mental disease or defect, he lacked
substantial capacity either to appreciate the wrongfulness of his conduct or to
conform his conduct to the requirements of the law. Blake v. United States, 407
F.2d 908, 916 (5th Cir.1969) (en banc).
Today the great weight of legal authority clearly supports the view
that evidence of mere narcotics addiction, standing alone and without other
physiological or psychological involvement, raises no issue of such a mental
PAGE 3
731 F.2d 243, *245; 1984 U.S. App. LEXIS 23486, **4;
15 Fed. R. Evid. Serv. (Callaghan) 859
defect or disease as can serve as a basis for the insanity defense. Bailey v.
United States, 386 F.2d 1, 3-4 (5th Cir.1967), cert. denied, 392 U.S. 946, 88 S.
Ct. 2300, 20 L. Ed. 2d 1408 (1968). Accord, United States v. Coffman, 567 F.2d
960, 963 (10th Cir.1977); United States v. Moore, 158 U.S. App. D.C. 375, 486
F.2d 1139, 1181 (D.C.Cir.) (en banc), cert. denied, 414 U.S. 980, 94 S. Ct. 298,
38 L. Ed. 2d 224 (1973); United States v. Stevens, 461 F.2d 317, 321 (7th
Cir.1972); Gaskins v. United States, 133 U.S. App. D.C. 288, 410 F.2d 987, 989
(D.C.Cir.1967); Green v. United States, 127 U.S. [**5] App. D.C. 272, 383 F.2d
199, 201 (D.C.Cir.1967), cert. denied, 390 U.S. 961, 88 S. Ct. 1061, 19 L. Ed.
2d 1158 (1968); United States v. Freeman, 357 F.2d 606, 625 (2d Cir.1966); Berry
v. United States, 286 F. Supp. 816, 820 (E.D.Pa.1968), rev'd on other grounds,
412 F.2d 189 (3d Cir.1969). Cf. United States v. Romano, 482 F.2d 1183, 1196
(5th Cir.1973), cert. denied sub nom. Yassen v. United States, 414 U.S. 1129,
94 S. Ct. 866, 38 L. Ed. 2d 753 (1974) (being involuntarily under the influence
of drugs at the time of the crime is not a legal equivalent of insanity). See
also Fingarette, Addiction and Criminal Responsibility, 84 Yale L.J. 413, 424-25
(1975) ("there is no consensus in the medical profession that addiction is a
mental disease"). n3
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 This rule is consistent with holdings that use of narcotics does not per
se render a defendant incompetent to stand trial, Lewis v. United States, 542
F.2d 50, 51 (8th Cir.), cert. denied, 429 U.S. 837, 97 S. Ct. 105, 50 L. Ed. 2d
103 (1976); United States v. Williams, 468 F.2d 819, 820 (5th Cir.1972);
Grennett v. United States, 131 U.S. App. D.C. 202, 403 F.2d 928, 931
(D.C.Cir.1968), and that mere alcoholism does not constitute a mental disease or
defect warranting an insanity instruction, Powell v. Texas, 392 U.S. 514, 535,
88 S. Ct. 2145, 2155, 20 L. Ed. 2d 1254 (1968); United States v. Shuckahosee,
609 F.2d 1351, 1355 (10th Cir.1979), cert. denied, 445 U.S. 919, 100 S. Ct.
1283, 63 L. Ed. 2d 605 (1980); United States v. Malafronte, 357 F.2d 629, 632 n.
8 (2d Cir.1966).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**6]
There are a number of reasons why. In the first place, there is an element
of reasoned choice when an addict knowingly acquires and uses drugs; he could
instead have participated in an addiction treatment program. Moore, 486 F.2d at
1183 (opinion of Leventhal, J.). A person is not to be excused for offending
"simply because he wanted to very, very badly." Bailey, 386 F.2d at 4. Second,
since the defense of insanity is "essentially an acknowledgement on the part of
society that because of mental disease or defect certain classes of wrongdoers
are not properly the subjects of criminal punishment," Freeman, 357 F.2d at 625,
it seems anomalous to immunize narcotics addicts from other criminal sanctions
when Congress has decreed severe penalties for mere possession and sale of
narcotics. Id. In addition, Congress has dealt with the problem of
responsibility of narcotics addicts for their crimes by providing for civil
commitment and treatment of addicts in lieu of prosecution or sentencing.
Bailey, 386 F.2d at 4. See, [*246] e.g., 18 U.S.C. @@ 4251-4255 (1976); 28
U.S.C. @@ 2901-2906 (1976).
Finally, what definition of "mental disease or defect" is to [**7] be
employed by courts enforcing the criminal law is, in the final analysis, a
PAGE 4
731 F.2d 243, *246; 1984 U.S. App. LEXIS 23486, **7;
15 Fed. R. Evid. Serv. (Callaghan) 859
question of legal, moral and policy -- not of medical -- judgment. n4 Among the
most basic purposes of the criminal law is that of preventing a person from
injuring others or, perhaps to a lesser degree, himself. This purpose and others
appropriate to law enforcement are not necessarily served by an uncritical
application of definitions developed with medical considerations of diagnosis
and treatment foremost in mind. Cf. Powell v. Texas, 392 U.S. at 540-41, 88 S.
Ct. at 2158-59 (Black, J., concurring). Indeed, it would be coincidental indeed
should concepts deriving from such disparate sources correspond closely, one to
the other. Thus it is, for example, that the law has not greatly concerned
itself with medical opinion about such mental states as accompany the commission
of crimes of passion or of those done while voluntarily intoxicated; whatever
that opinion may be, policy considerations have been thought to forbid its
cutting much of a figure in court.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 Speaking of the recent American Psychiatric Association Statement on the
Insanity Defense, Professor Phillip E. Johnson notes:
The APA has not adopted the extreme views of Thomas Szasz, but it has definitely
repudiated the ideology of Karl Menninger. The psychiatrists no longer want
the criminal law to change to conform to deterministic psychiatric concepts;
instead, they regard it as vital to the integrity of their own discipline that
"legal or moral constructs such as free will" be understood as outside the
domain of psychiatry. They emphatically affirm that most people, including those
with sociopathic personality disorders, should be held accountable for what they
do. They are not washing their hands of the legal problems, and they believe
that the law still needs them, but they understand that legal and moral
decisions are ultimately to be made by citizens, not experts. I regard this
newly found modesty as evidence of the profession's increasing maturity, not as
a sign of its failure.
Johnson, Book Review, 50 U.Chi.L.Rev. 1534, 1548 (1983) (reviewing N. Morris,
Madness and the Criminal Law (1982)).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**8]
Contravening the broad thrust of the authorities cited above, the panel
opinion appears to suggest that "involuntary" drug addiction can constitute a "
mental disease or defect" bearing on the defendant's criminal responsibility.
704 F.2d at 747. The panel believed itself bound to that rule by such a holding
in United States v. Bass, 490 F.2d 846 (5th Cir.1974). In so concluding the
panel acted with obvious reluctance but with fidelity to the principle that one
panel of our court does not overrule another. Today, sitting en banc,
we overrule Bass insofar as it may be read to hold that mere drug addiction,
voluntary or involuntary, can be a mental disease for legal purposes. Insofar,
however, as it countenanced the receipt of evidence of drug addiction in
connection with Bass's genuine mental disease -- chronic anxiety -- to which it
contributed, we find no fault with the opinion.
Although mere narcotics addiction is not itself to be acknowledged as a
mental disease or defect, evidence of narcotics addiction has been received by
PAGE 5
731 F.2d 243, *246; 1984 U.S. App. LEXIS 23486, **8;
15 Fed. R. Evid. Serv. (Callaghan) 859
some courts as evidence of such an underlying condition. Green v. United States
, 127 U.S. App. D.C. 272, 383 F.2d 199, 201 (D.C.Cir.1967), [**9] cert. denied,
390 U.S. 961, 88 S. Ct. 1061, 19 L. Ed. 2d 1158 (1968). In addition, if
addiction has caused actual physical damage to the structures of a defendant's
body, evidence of that addiction has been admitted to show any mental defect
resulting from that damage. Cf. Brinkley v. United States, 498 F.2d 505,
511-12 (8th Cir.1974) (remanding to explore possible physiological and
psychological effects of long term LSD use on appellant and whether these
effects might amount to insanity).
We view the reasoning of such rulings as Green with profound misgivings. To
us it seems to rest on the proposition that, assuming drug addiction itself is
neither a mental disease nor a defect, yet the two are often to be found in
association, so that an addicted person is more likely to suffer from some
mental disorder than is one who [*247] is not addicted. n5 By a parity of
reasoning, since combat veterans as a group are self-evidently more likely to
have suffered the loss of a physical member than is the populace at large,
evidence of whether a party is a combat veteran should be received on the issue
whether he has lost a leg. Or, to take a less extreme example, since because
[**10] of light skin pigmentation persons of Scandinavian ancestry are more
subject to skin cancer than are others, the family tree of a suitor should be
received in evidence when his skin cancer is at legal issue. The flaw in both
illustrations seems evident: where evidence bearing directly on a legal question
is available, that involving tangential matters, even though perhaps logically
relevant in theory, is of small practical value. n6
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 See, e.g., Gerard & Kornetsky, Adolescent Opiate Addiction: A Study of
Control and Addict Subjects, 29 Psychiatric Q. 457 (1955); Sutker, Personality
Differences and Sociopathy in Heroin Addicts and Nonaddict Prisoners, 78 J.
Abnormal Psychology, 247 (1971).
n6 Indeed, it may be counter-productive. One might well view with suspicion
a claim to have lost a leg made by one who supported it only with evidence that
he had served in combat, rather than by lifting his trouser cuff.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Our review of numerous records over the course of years has revealed no
dearth [**11] of experts ready and willing to testify squarely on the issue of
insanity in criminal trials: direct evidence on the issue seems all but too
readily available. Since this is so, receiving evidence of drug addiction in
addition seems to us an exercise seldom likely to prove more probative than
prejudicial in practice. See Rule 403, Federal Rules of Evidence. n7
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 We do not suggest that references in testimony to drug use as the cause of
or as aggravating particular brain pathology should be viewed as taboo, only
that attempts to characterize addiction as itself a mental disease or defect are
not to be countenanced.
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PAGE 6
731 F.2d 243, *247; 1984 U.S. App. LEXIS 23486, **11;
15 Fed. R. Evid. Serv. (Callaghan) 859
Nor do we see how matters are clarified by reference to the condition of
addiction as one involving "psychological damage" to the addict, e.g., Brinkley
v. United States, supra. As nearly as we can determine, the psychological
condition so described is simply one of drug addiction to one degree or another,
a condition that we have already declined to view as a mental disease or defect
for [**12] legal purposes. An actual drug-induced or drug-aggravated
psychosis, or physical damage to the brain or nervous system would, however, be
another matter.
We do not doubt that actual physical damage to the brain itself falls within
the ambit of "mental disease or defect." To refuse to recognize that a
congenital microcephalic, or one who has suffered, say, extensive brain damage
from a gunshot wound or other physical trauma, may be thereby rendered unable
to appreciate the character of his conduct as wrongful would be presumptuous.
Here, within the limits of appropriate legal and policy considerations, the
medical model must have its day. The same is true of the question whether such
organic brain pathology or psychosis can be caused by drugs.
Lyons asserted by his proffer of evidence that his drug addiction caused
physiological damage to his brain and that this damage caused him to lack
substantial capacity to conform his conduct to the requirements of the law. 704
F.2d at 746. Since he did so, he should -- under our subsisting Blake test --
have been allowed to introduce evidence of any physical brain damage and
consequent mental disease or defect. Because the proffer [**13] offers
evidence tending to suggest such damage, that evidence should have been
submitted to the jury. Blake, 407 F.2d at 911. And although we today withdraw
our recognition of the volitional prong of Blake -- that as to which such
evidence has usually been advanced -- we also conclude that should Lyons wish to
offer such evidence in an attempt to satisfy the remaining cognitive prong,
fairness demands that we afford him an opportunity to do so.
II.
Because the concept of criminal responsibility in the federal courts is a
congeries of judicially-made rules of decision based on common law concepts, it
is usually [*248] appropriate for us to reexamine and reappraise these rules
in the light of new policy considerations. Wion v. United States, 325 F.2d 420,
425 (10th Cir.1963). We last examined the insanity defense in Blake v. United
States, 407 F.2d 908 (5th Cir.1969) (en banc), where we adopted the ALI Model
Penal Code definition of insanity: that a person is not responsible for criminal
conduct if, at the time of such conduct and as a result of mental disease or
defect, he lacks substantial capacity either to appreciate the wrongfulness of
his conduct or to [**14] conform his conduct to the requirements of the law.
Id. at 916. Following the example of sister circuits, we embraced this standard
in lieu of our former one, defined in Howard v. United States, 232 F.2d 274, 275
(5th Cir.1956) (en banc), n8 because we concluded that then current knowledge in
the field of behavioral science supported such a result. 407 F.2d at 909,
914-15. Unfortunately, it now appears our conclusion was premature -- that the
brave new world that we foresaw has not arrived.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 The Howard standard provided that insanity constituted either the
PAGE 7
731 F.2d 243, *248; 1984 U.S. App. LEXIS 23486, **14;
15 Fed. R. Evid. Serv. (Callaghan) 859
"incapacity from some mental disease or defect to distinguish between right and
wrong with respect to the act, or the inability from such disease or defect to
refrain from doing wrong in the commission of the act." 232 F.2d at 275.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Reexamining the Blake standard today, we conclude that the volitional prong
of the insanity defense -- a lack of capacity to conform one's conduct to the
requirements of the law -- does not comport with current [**15] medical and
scientific knowledge, which has retreated from its earlier, sanguine
expectations. Consequently, we now hold that a person is not responsible for
criminal conduct on the grounds of insanity only if at the time of that conduct,
as a result of a mental disease or defect, he is unable to appreciate the
wrongfulness of that conduct. n9
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n9 We employ the phrase "is unable" in preference to our earlier formulation
"lacks substantial capacity" for reasons well stated in the Commentary of the
American Bar Association Standing Committee:
Finally, it should be pointed out that the standard employs the term "unable"
in lieu of the "substantial capacity" language of the ALI test. This approach
has been taken both to simplify the formulation and to reduce the risk that
juries will interpret the test too loosely. By using the "substantial capacity"
language, the drafters of the ALI standard were trying to avoid the rigidity
implicit in the M'Naughten formulation. They correctly recognize that it is
rarely possible to say that a mentally disordered person was totally unable to
"know" what he was doing or to "know" that it was wrong; even a psychotic person
typically retains some grasp of reality. However, the phrase "substantial
capacity" is not essential to take into account these clinical realities.
Sufficient flexibility is provided by the term "appreciate."
Commentary (revised November, 1983) to Standards 7-6.1(a) and 7-6.9(b), ABA
Standing Committee on Association Standards for Criminal Justice (to be
published).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**16]
We do so for several reasons. First, as we have mentioned, a majority of
psychiatrists now believe that they do not possess sufficient accurate
scientific bases for measuring a person's capacity for self-control or for
calibrating the impairment of that capacity. Bonnie, The Moral Basis of the
Insanity Defense, 69 ABA J. 194, 196 (1983). n10 "The line between an
irresistible impulse and an impulse not resisted is probably no sharper than
between twilight and dusk." American Psychiatric Association Statement on the
Insanity Defense, 11 (1982) [APA Statement]. Indeed, Professor Bonnie states:
There is, in short, no objective basis for distinguishing between offenders who
were undeterrable and those who were merely undeterred, between the impulse that
was irresistible and the impulse not resisted, or between substantial impairment
of capacity and some lesser impairment.
PAGE 8
731 F.2d 243, *248; 1984 U.S. App. LEXIS 23486, **16;
15 Fed. R. Evid. Serv. (Callaghan) 859
Bonnie, supra, at 196. n11
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10 See also H. Fingarette, The Meaning of Insanity 166 (1972); Wootton, Book
Review, 77 Yale L.J. 1019, 1026-27 (1968); Statement of David Robinson, Jr.,
The Insanity Defense, Hearings Before the Senate Comm. on the Judiciary, 97th
Cong., 2d Sess. 72-73 (1982); Testimony of Stephen Morse, Insanity Defense in
Federal Courts, Hearings Before the Subcomm. on Criminal Justice of the House
Comm. on the Judiciary, 97th Cong., 2d Sess. 211 (1982). [**17]
n11 One commentator has noted that no one has ever observed the process of a
person losing the capacity for self-control, and "that no one can." Fingarette,
supra, at 160.
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[*249] In addition, the risks of fabrication and "moral mistakes" in
administering the insanity defense are greatest "when the experts and the jury
are asked to speculate whether the defendant had the capacity to 'control'
himself or whether he could have 'resisted' the criminal impulse." Bonnie, supra
, at 196. Moreover, psychiatric testimony about volition is more likely to
produce confusion for jurors than is psychiatric testimony concerning a
defendant's appreciation of the wrongfulness of his act. APA Statement at 12.
It appears, moreover, that there is considerable overlap between a psychotic
person's inability to understand and his ability to control his behavior. Most
psychotic persons who fail a volitional test would also fail a cognitive test,
thus rendering the volitional test superfluous for them. Id. n12 Finally,
Supreme Court authority requires that such proof be made by the federal
prosecutor [**18] beyond a reasonable doubt, an all but impossible task in view
of the present murky state of medical knowledge. Davis v. United States, 160
U.S. 469, 16 S. Ct. 353, 40 L. Ed. 499 (1895). n13
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n12 See also Statement of Stephen Morse, Insanity Defense in Federal Courts,
Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the
Judiciary, 97th Cong., 2d Sess. 231 (1982).
n13
John Hinckley is the young man who attempted to assassinate President Reagan in
order to attract attention to himself and to impress a movie actress whom he
admired from a distance. The subsequent proceedings called into question not
only the insanity defense but the rationality of our adversarial jury-trial
system. After more than a year of expensive pretrial maneuvering and
psychiatric examinations, the lawyers jousted for eight weeks of trial,
examining and cross-examining expert witnesses who naturally gave conflicting
and confusing testimony on whether Hinckley's obviously warped mentality
amounted to legal insanity. The judge instructed the jury to return a verdict of
not guilty unless they could agree "beyond a reasonable doubt" that Hinckley was
sane. If taken literally, the instruction amounted to a directed verdict of not
PAGE 9
731 F.2d 243, *249; 1984 U.S. App. LEXIS 23486, **18;
15 Fed. R. Evid. Serv. (Callaghan) 859
guilty, considering the deadlock of expert opinion and the difficulty of
certifying the sanity of a young man who shot the President to impress a movie
star. Juries usually ignore such unpopular legal standards, but the Hinckley
jury surprised everybody by taking the law seriously and finding him not guilty.
Hinckley will now be confined to a mental hospital indefinitely because he is
"dangerous," although there is no reliable way to predict what he would do if
released and no reliable test to determine if he has been "cured."
Johnson, Book Review, 50 U.Chi.L.Rev. 1534, 1536 (1983) (reviewing N. Morris,
Madness and the Criminal Law (1982)).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**19]
One need not disbelieve in the existence of Angels in order to conclude that
the present state of our knowledge regarding them is not such as to support
confident conclusions about how many can dance on the head of a pin. n14 In like
vein, it may be that some day tools will be discovered with which reliable
conclusions about human volition can be fashioned. It appears to be all but a
certainty, however, that despite earlier hopes they do not lie in our hands
today. When and if they do, it will be time to consider again to what degree
the law should adopt the sort of conclusions that they produce. But until then,
we see no prudent course for the law to follow but to treat all criminal
impulses -- including those not resisted -- as resistible. To do otherwise in
the present state of medical knowledge would be to cast the insanity defense
adrift upon a sea of unfounded scientific speculation, with the palm awarded
case by case to the most convincing advocate of that which is presently unknown
-- and may remain so, because unknowable.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n14 "What Song the Syrens sang, or what name Achilles assumed when he hid
himself among women, though puzzling questions, are not beyond all conjecture."
Sir Thomas Browne, URN BURIAL, v.
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[**20]
III.
Thus, Lyons' claim that he lacked substantial capacity to conform his conduct
to the requirements of the law will not raise the insanity defense. It would be
unfair, however, to remit him retroactively [*250] to our newly restricted
insanity defense without allowing him the opportunity to plan a defense bearing
its contours in mind. Consequently, we vacate his conviction and remand for a
new trial in accordance with our new insanity standard. As for other cases,
today's holding shall have prospective application only, commencing thirty days
from the date of its publication.
VACATED and REMANDED.
CONCURBY: PAGE 10
731 F.2d 243, *250; 1984 U.S. App. LEXIS 23486, **20;
15 Fed. R. Evid. Serv. (Callaghan) 859
DISSENTBY:
DISSENT:
ALVIN B. RUBIN and JERRE S. WILLIAMS, Circuit Judges, with whom POLITZ, 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 [**21] 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. [**22] 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' [**23] of mental disease or insanity so as to raise the issue of
criminal responsibility." Id. at 4 (quoting Heard v. United States, 121 U.S.
App. D.C. 37, 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
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15 Fed. R. Evid. Serv. (Callaghan) 859
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, n1 provides for civil commitments of addicts or for sentences
[*251] 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. [**24] Cf. Doughty v. Beto, 396 F.2d 128, 130 (5th
Cir.1968) (evidence of alcoholism, without more, does not create constitutional
defense for one convicted of theft).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 28 U.S.C. @@ 2901-2906, 18 U.S.C. @@ 4251-4255.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
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 [**25] 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 [**26] 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
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15 Fed. R. Evid. Serv. (Callaghan) 859
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 [**27] cases establish a relatively clear standard. Bailey holds
that narcotic addiction alone is insufficient to raise 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 addiction [*252] 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, "it would appear that an element of reasoned choice yet exists when an
addict knowingly violates the [**28] 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 [**29] 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. n2 The government's position was surely correct. Lyons' proffer did
no more than state the undisputed conclusion that drug consumption has an impact
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15 Fed. R. Evid. Serv. (Callaghan) 859
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.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**30]
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 [**31] 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 n3 is
especially inappropriate.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 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
PAGE 14
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15 Fed. R. Evid. Serv. (Callaghan) 859
[**1]
Vacated and remanded.
Julian R. Murray, Jr., New Orleans, Louisiana, for Appellant.
Clark, Chief Judge, Brown, Gee, Rubin, Garza, Reavley, Politz, Tate, Johnson,
Williams, Garwood, Jolly and Higginbotham, Circuit Judges. * Alvin B. Rubin and
Jerre S. Williams, Circuit Judges, with whom Politz, Tate, and Higginbotham,
Circuit Judges join, concurring in part and dissenting in part. Johnson, [**2]
Circuit Judge, dissenting.
GEE
RUBIN (In Part); WILLIAMS (In Part)
RUBIN (In Part); WILLIAMS (In Part); JOHNSON