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Criminal Law Conversations$
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Paul H. Robinson, Stephen Garvey, and Kimberly Kessler Ferzan

Print publication date: 2011

Print ISBN-13: 9780199861279

Published to Oxford Scholarship Online: April 2015

DOI: 10.1093/acprof:osobl/9780199861279.001.0001

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Abolition of the Insanity Defense

Abolition of the Insanity Defense

(p.473) 22. Abolition of the Insanity Defense
Criminal Law Conversations

Christopher Slobogin

Oxford University Press

This chapter presents an authoritative case for the abolition of the insanity defense. It argues that, both morally and practically, the most appropriate manner of recognizing the mitigating impact of mental illness in criminal cases is to recast it as a factor relevant to the general defenses, rather than treat it as a predicate for a special defense. It first considers the retributive principle that blameworthiness should be the predominate guidepost of the criminal law's attempt to define the scope of liability. It then examines the limitations of existing and proposed tests for insanity, including the volitional test, the appreciation test, and the rationality test. It also discusses the role that mental illness should play when negligence is the mens rea and when, if ever, ignorance of the criminal law due to mental disorder should be an excuse. The chapter includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as cognition, integrationism, and justification of defenses.

Keywords:   insanity defense, mental illness, blameworthiness, criminal law, insanity, negligence, mens rea, cognition, integrationism

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