2.10 The Retreat

2.9 The Product Test

Book Two / 10

Durham was the first of a long line of decisions between 1954 and 1972 that emerged from the D.C. Court of Appeals on responsibility cases.  In these cases Judge Bazelon and his colleagues attempted to structure the defense in a manner that better matched modern science on mental illness.  In addition to updating the definition of legal insanity, the court strove to find ways in which the best scientific evidence with respect to each individual defendant could be presented to jurors.  Jurors — the Court believed — when equipped with the necessary medical information on a defendant’s particular form of illness, could then decide whether or not his criminal conduct had been a product of his illness.

Toward that decision, Durham’s product rule focused jurors’ attention on whether a defendant’s serious mental illness had impaired his mental processing such that he’d been unable to control his actions, even if he’d been aware at the time that his actions were unlawful.  Alternatively, the rule could be phrased in a manner that borrowed a causation concept from civil tort law:  if jurors first found from the evidence that a defendant was suffering from a mental disease or defect at the time of his criminal act, the product rule would ask them to decide whether he would have committed that act but for his illness.


For nearly twenty years the D. C. Court continued to modify the product rule as insanity cases came before them on appeal.  Then, in 1972, in the case of U.S. versus Brawner, the Court shifted course again.  It was still seeking to advance the courts’ understanding of the mentally ill criminal defendant, and conform the insanity defense to modern science, but after two decades of experimentation a majority of the judges on that circuit had decided to try something different.

In Brawner the Court set aside the product test of Durham and adopted a new test for mental responsibility.  The test was one that most other federal appeals courts had adopted through the 1960s when they’d renounced M’Naghten’s Rule.  The D.C. court was now joining this more moderate position.

The new rule was adopted from one developed by the American Law Institute.  As the Brawner decision paraphrased it, the rule read roughly as follows:

A person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.*

The new rule was a hybrid of sorts, combining both cognitive and volitional elements.  Although narrower than the product rule, it still embraced a wider group of potential defendants than M’Naghten’s Rule.  And the D.C. Circuit Court went a little further to encourage that breadth by modifying the ALI rule for their jurisdiction in a manner that retained a more liberal definition of ‘mental illness or defect.’

In its Brawner decision, retreating from its experiments with Durham’s product rule, the D.C. Circuit Court addressed some of the other options it had been encouraged to consider by organizations contributing amicus briefs on the issue.  In settling on the ALI rule, the Court explained — betraying a self-conscious belief that the product rule may have gone too far — the Court intended to avoid a jury’s “excess of compassion” for a defendant, at the expense of justice to the broader community.

In a foreshadowing of the nation’s embrace of the personal responsibility mantra that would develop more fully in the 1980s, the Brawner Court gave a nod to more conservative concerns.  An open society’s “ideals of justice,” the Court cautioned, had also to “safeguard the vast majority who responsibly shoulder the burdens implicit in its ordered liberty.”

In the final measure, however, the Court’s majority could agree that Brawner was not intended to curtail a defendant’s “broad presentation to the jury” of evidence concerning his mental illness and a lack of either cognitive or volitional capacity.  The courts were meant to continue their important inquiry into mental illness in society, to continue trying to understand the science of mental illness, and the relationship of mental illness to an individual’s legal responsibility for acts that result.


Judge Bazelon had written the majority opinion in Durham, and in many of the responsibility cases that followed.  He did not write for the majority in Brawner.  He did file a separate opinion, however, one that both concurred and dissented with the majority.

By this time Bazelon was serving as the court’s Chief Judge.  He had sat on the bench of that prestigious Court of Appeals for twenty-three years, and had been the driving force behind its groundbreaking rulings on issues involving the mentally ill and indigent defendant.  In Brawner, the case that would conclude his court’s explorations into the terrain of the insanity defense, Judge Bazelon now traced the court’s steps all the way back to Durham, observing the motivations that had inspired the Court, in 1954, to re-examine the law of mental responsibility within a social and scientific context.

In a searching opinion, Judge Bazelon lamented that now, with Brawner, the Court seemed to be abandoning its “spirit of experimentation, inquiry, and confrontation that have characterized so much of our work in this field.”  At the same time, however, he was concerned that for years he and his colleagues had merely been pushing different words around on various pages, while in the trial courts of its jurisdiction individuals continued to struggle with what those words meant, and how to implement the relief they were meant to provide.  He fretted about the Brawner decision that “while the generals are designing an inspiring new insignia for the standard, the battle is being lost in the trenches.”

But Bazelon had an even bigger target with his opinion.  In choosing to overrule Durham, he explained, the Court this day could have chosen to explore “the most difficult questions” that had come before it in the intervening years.  These questions, in Bazelon’s opinion, concerned issues as fundamental as the very reasons why courts and societies maintain the insanity defense, and as profound — in a practical sense — as the way to “facilitate a meaningful use of the defense by all defendants, including indigents who must rely on the government for expert assistance.”  Judge Bazelon worried that, far from exploring these questions in Brawner, the court was retreating from them instead.

Bazelon had voiced his concern for indigent criminal defendants throughout his earlier opinions, but each time he had done so indirectly.  In Brawner, he now confronted the problem head-on, calling himself and his colleagues to task for failing to discuss directly the unequal results they had seen between the mentally ill defendants arriving to trial from an affluent background and those arriving from poverty.  “Neither Durham nor Brawner,” he wrote, “lets slip our well-guarded secret that the great majority of responsibility cases concern indigents, not affluent defendants with easy access to legal and psychiatric assistance.”


To put it more colloquially — in a way Judge Bazelon could not in his opinion — the majority of the responsibility cases that come before the country’s appellate courts involve poor defendants because affluent defendants, with private defense counsel and private psychiatrists, can afford to beat the rap.  More importantly perhaps, affluent individuals will have the resources to obtain treatment before their illness produces criminal conduct and lands them in court.  The impoverished individual will not.

Being both poor and mentally ill places individuals at a genuine disadvantage once they are charged with a criminal offense.  The mentally ill and impoverished defendant will receive only the diminished level of resources available from the state for every element of his defense.  He will receive an overworked and underfunded public defender to represent him in pretrial and trial proceedings, and the state hospital’s own psychiatrist to both treat his illness in advance of trial if found incompetent at first, and either bolster or bludgeon an available insanity defense.  Frequently that defense will fail before a jury, and when it does, the record of proceedings may make its way to the appellate courts for review.

Sitting on one of those appellate courts, Judge Bazelon had read hundreds of trial transcripts involving these very defendants.  They were individuals too poor to access the same quality of medical and psychological assistance as more affluent defendants.  In some sense he had tried over the decades to provide a backstop for these men and women, to level the playing field a bit and give the impoverished defendant a meaningful opportunity to have his mental illness recognized, credited, and treated.  Durham’s product rule, however — his Court’s grandest achievement toward that effort — had failed.

Ultimately Judge Bazelon agreed with the Brawner majority that Durham’s product rule was not working.  Yet, despite agreeing to set aside that test, he insisted that its replacement not narrow the scope of individuals to whom the insanity defense would at least be available to present to a jury at trial — whether or not the jurors ultimately bought it.

In a rejection of the majority’s concerns that any new rule not result in a jury’s “excess of compassion,” and therefore too many acquittals, Judge Bazelon expressed his hopes that the pendulum would continue to swing in the direction of education and understanding:

Even if juries were consistently to set the standard of responsibility so low that virtually every defendant would meet it, they would still have to confront the causes of criminal conduct in a way that might teach us all something about human behavior.  And they would be giving defendants the kind of careful, individual study that should precede any decision as consequential as the imposition of moral condemnation on another human being.


After Brawner federal common law on responsibility cases remained largely stable for a decade.  Then, in1982, in an echo of the events that followed the trial of M’Naghten in 1848, the trial of John Hinkley Jr. for his assassination attempt on President Reagan ended in his acquittal on grounds of insanity.  It was the sort of headline case that makes politicians — and the politician in judges — wince and reach for their records or caseloads to review.

On the heels of public and political outrage, many states quickly retreated from their earlier progressive advance, and tightened their laws on the insanity defense.   Congress followed suit.  In 1984 it codified M’Naghten’s Rule for federal jurisdictions through its enactment of the Insanity Defense Reform Act.  The Act superseded all the case law on the insanity defense that each individual circuit court had carefully developed through the 1950s, ‘60s and ‘70s — including Judge Bazelon’s court.

Although the Act established uniformity on the defense in the federal courts, it also made a defendant’s success with it much more difficult.  By reestablishing M’Naghten’s Rule, it eliminated the middle ground on which defendants could be absolved of criminal responsibility if their mental illness had caused their criminal conduct.  It also shifted the burden of proof of on the issue of sanity from the prosecution to the defense.

Enactment of the Insanity Defense Reform Act marked the end of the national trend away from M’Naghten’s Rule that had characterized the development of the insanity defense throughout much of the twentieth-century.  With the 1980s and the renewed war on crime now well underway, congressional action on the defense had brought it back into closer alignment with its nineteenth-century Victorian precedent.

*Brawner v. United States, 471 F.2d 929 (D.C. Cir. 1972).

All quotes and references in this section are from the Brawner decision.

2.11 Compounding a Mistake