Some thoughts on the insanity defense in light of the Lindsay Clancy mistrial. 1) Until 1823, Britain engaged in a remarkable culling: the justice system simply executed nearly every criminal automatically. Judges were not supposed to have discretion. It was like the “straight to jail” meme, except executed. Murder? Executed. Robbery? Executed. Forgery? Executed. At its peak, England was executing 0.5-1% of men during their lifetimes. To the extent violent behavior is partially hereditary, this unintentional eugenics program probably has a lot to do with why Anglo-descended countries tend to be somewhat less violent than societies that didn’t have centuries of a justice system demanding its people act civilized or else. Not always; Japan’s culture of shame and honor and collective responsibility and drug regulation has been more effective in the 21st century, and Bukele has shown what political willpower to stop crime can achieve. But a tendency towards the top quartile of peacefulness. 2) Judges don’t like having no discretion, and there was probably some jury nullification going on, so legal safety valves were created by the judiciary. Small children were deemed incapable of committing crimes. Judges could issue a temporary stay of execution and ask the Home Secretary to have the monarch issue a commutation to a term of years or penal transportation to Australia. Someone with influential friends could lobby the Home Secretary during the stay. 3) From this general lack of discretion, the insanity defense arose. Judges unilaterally invented the “wild beast test”: a complete gibbering madman no better than an infant or a wild beast couldn’t be convicted and executed; he was not guilty. Not that he wasn’t incapacitated. Judges would still apply civil vagrancy laws to lock up madmen. A wealthy madman was expected to be locked up by his family. England eventually created involuntary asylums to indefinitely hold those insane people who committed violent acts. 4) Over the next centuries, there were three trends that created our current insane insanity defense. First, we stopped executing for everything, eventually executing for nothing. The original purpose of the defense—gosh, it’s mean for the state to behead or burn at the stake a completely dysfunctional man who didn’t know what he was doing or even his own name—disappeared, but the defense stuck around. 5) Second, judges were inclined to nibble at the wild beast test to expand the insanity defense, culminating in the M’Naughten test, where merely being delusional was enough to be declared insane. This was hypothetically pretty strict, but defense attorneys could work with it in individual cases to get jury acquittals. But, again, M’Naughten was spared from the noose, but spent the rest of his life confined in asylums. 6) Third, a mid-to-late twentieth century movement found insane asylums distasteful and just shut them down at the same time that judges decided that involuntary commitments required extensive court hearings and repeated review, with soft-hearted psychiatrists telling courts that medication “cured” an insane person who couldn’t be trusted to take the side-effect-ridden medicine once out of the control of the state. Why it’s more cruel to keep such people in hospitals than as homeless vagrants stealing our safety in public spaces and libraries is beyond me, but. 7) California in the 1970s showed the peak of this sort of thing: Dan White used a “diminished capacity” defense (the so-called “Twinkie defense,” because junk food supposedly made him to depressed to have premeditation to kill Moscone and Milk) to get his murder charges knocked down to manslaughter by a jury—the backlash caused California to abolish the defense in one of the last populist backlashes against progressive policies before Democrats took over the state. And John Hinckley was infamously acquitted in the early 1980s, causing several states to also pare back their insanity defenses. 🧵