| Examination of the psychiatric literature reveals that mental disorder is not an all-or-nothing phenomenon. Mental disorder varies qualitatively and quantitatively within and between individuals. Culpability varies as a function of rationality at the time of the criminal act. It is proposed that we eliminate the insanity defence as we now know it. In its place it is proposed that the M'Naghten test be converted into a sliding scale rather than the present all-or-nothing verdict. The trier of fact would determine the extent to which the accused's ability to appreciate the nature and quality of his act or of knowing that it was wrong was compromised by mental disorder. It is submitted that juries in the civil arena have demonstrated competence with such tasks as they are routinely involved in the apportioning of liability. It is proposed that, upon proof of the actus reus, the otherwise appropriate sentence would be attenuated as a direct function of the extent to which the ability to appreciate and know were compromised by mental disorder. Any remaining jurisdiction over the accused would be predicated upon residual significant threat to the safety of the public. (Abstract shortened by UMI.). |
