Why abolishing the insanity defense is not enough

What Kansas Kept When It Dropped the Moral Insanity Defense, Read Through Thomas Szasz

This page is for learning and research. It discusses law and moral philosophy but is not legal advice, and it is not advice to stop or change any prescribed medication.

Psychiatrist Thomas Szasz (1920 to 2012) argued for decades that the insanity defense should go. In 2020 the Supreme Court of the United States allowed Kansas to keep a law that removes the classic version of it. A reader might assume Szasz won. This page argues the opposite, and it serves the goal of freeing people from coercion and of treating problems in living as human problems rather than as grounds for losing legal standing. The thesis is simple: Szasz treated the insanity defense and civil commitment as two parts of one system, so removing one part while keeping psychiatric diversion and involuntary hospitalization restores neither responsibility nor liberty.

What Kansas changed and what it kept

In Kahler v. Kansas, decided March 23, 2020, the Court held that due process "does not require Kansas to adopt an insanity test that turns on a defendant's ability to recognize that his crime was morally wrong." The old English rule from M'Naghten's Case (1843) had two prongs. One asked whether the accused understood what he was doing. The other asked whether he knew the act was wrong. Kansas kept only the first, so mental illness can defeat a conviction only when it prevented the person from forming the intent the crime requires. The opinion notes that four other states, Alaska, Idaho, Montana, and Utah, follow a similar approach.

The opinion is just as clear about what Kansas kept. At sentencing, a defendant "has wide latitude to raise his mental illness as a reason to judge him not fully culpable," and the same evidence "can persuade a court to place a defendant who needs psychiatric care in a mental health facility rather than a prison." The Court added that a Kansas defendant "may wind up in the same kind of institution as a like defendant in a State that would bar his conviction."

Szasz's objection: reasons, not causes

Szasz did not object to the insanity defense because it was too generous. He objected because it rested on a false picture of human action. In a 2000 essay he wrote that "regardless of whether a person is (deemed to be) sane or insane, he has reasons, not causes, for his action." If observers find those reasons absurd, they call the person insane, but "that does not prove that an alleged condition ('insanity' or 'mental illness') caused him to commit the forbidden act."

He did not deny brain disease. In his 1960 paper he accepted that conditions such as syphilis of the brain are real diseases, but called them "diseases of the brain, not of the mind." In the 2000 essay he added that a brain disease typically causes a deficit such as weakness, blindness, or paralysis, while "no brain disease causes complex, coordinated behaviors" such as a planned killing. This is his contested philosophical position, not a settled clinical finding. It does not deny that people suffer or that some suffer from neurological disease. It claims that a judgment about conduct is a moral judgment and should be named as one.

From there the conclusion follows. If a person who kills had reasons, then "justice demands that we take him seriously and punish him for his deed." If he is also ill, Szasz wrote, he could be "imprisoned for his crime and 'treated' for his illness in prison," as a prisoner with tuberculosis would be.

A tactic dressed as a fact

In a 2010 essay Szasz described the insanity defense as "a tactic, not a fact." When a psychiatrist testifies in a murder trial, the identity of the killer and the cause of death are usually not in doubt. What the expert is really addressing is guilt, yet the opinion "is attributed to his medical expertise." Experts, he wrote, "disagree about how the criminal justice system ought to deal with the defendant, not about what the defendant did to his victim."

Kansas did not remove this tactic; it moved it from the verdict to the sentence. Under the Kansas scheme the same testimony now shapes the sentence and the choice between prison and hospital. The moral question is still answered in medical vocabulary, only at a later stage.

Where the defense came from

Szasz traced the defense to an older problem: suicide was once a crime punished by denying religious burial and seizing the dead person's estate. Juries unwilling to ruin widows and children began to find, after the fact, that the person had been non compos mentis. He quoted William Blackstone's warning that this excuse should not be stretched to treat every suicide as proof of insanity, "as if every man who acts contrary to reason had no reason at all." In Szasz's account, the result was that persons suspected of being suicidal began to be confined in asylums, and the belief grew that the insane are likely to kill themselves or others.

The twin pillars and why one cannot fall alone

Szasz named civil commitment and the insanity defense "the twin pillars" of psychiatry as social control. He called commitment a euphemism for "depriving innocent persons of liberty," and the insanity defense a euphemism for "diverting persons guilty of crimes from the criminal justice system to the mental health system." Elsewhere he summed up the pair as "inculpating the innocent and exculpating the guilty."

The two pillars rest on one premise: that a diagnosis can stand in for the rules that apply to everyone else. Remove the excuse at trial while keeping commitment, and the premise survives intact. A person who has broken no law can still be detained for predicted danger, and a person who has broken the law can still be sent to a hospital instead of facing an ordinary sentence. Szasz stated his alternative plainly: "the state ought to punish only illegal behavior and ought to do so only by criminal sanctions." He also wrote that "slavery cannot be reformed; it can only be abolished," and that psychiatric reforms that change commitment criteria are "exercises in prettifying plantations."

Law, legitimacy, and medicine

The Kansas statute is lawful; the Court said so. Szasz always kept legality and moral legitimacy apart. Because confinement deprives "law-abiding individuals of liberty," he wrote, "it requires moral and legal justification." He also argued that coercion corrupts medicine itself: "In medicine, involuntary treatment is assault and battery," while "the medical patient has a right to reject treatment; the mental patient does not."

The opposing view

The dissent in Kahler, written by Justice Breyer and joined by two other justices, argued that Kansas had "eliminated the core of a defense that has existed for centuries": that a defendant, because of mental illness, "lacked the mental capacity necessary for his conduct to be considered morally blameworthy." This is a serious moral argument rooted in the idea that punishment requires blame.

The Szaszian reply is that blame should be assessed the way it is for every other defendant, through intent, circumstances, and mercy at sentencing, without converting a moral judgment into a medical status that then justifies indefinite confinement.

Honest limits

Szasz's view is a minority position in law and psychiatry. Many scholars hold that some people cannot fairly be blamed, and the history of the defense is more varied than any single account. This page compares a court opinion with a philosophical critique. It does not describe how any trial works in practice, and it says nothing about any person's diagnosis, care, or medication.

Why this matters for freedom from coercion

Abundance includes legal abundance: the same rights, the same procedures, and the same standing for every adult. The Kansas case shows how a reform can look like progress while the underlying system stays the same. For Szasz, the test of a real change is whether a diagnosis still decides who loses liberty. By that test, abolishing one pillar is not abolition.

Discussion questions, essay ideas, and learning related AI prompt ideas

• Explain why Szasz held that people have reasons rather than causes for their actions, and how that claim bears on criminal responsibility.
• Compare the Kansas rule upheld in Kahler v. Kansas with the full M'Naghten test, and ask which one Szasz would find closer to equal treatment under law.
• Analyze whether moving psychiatric evidence from the verdict to the sentence changes the moral relationship between the state and the accused.
• Evaluate the dissent's claim that punishment requires moral blameworthiness, and set it against Szasz's view that blame belongs to law and ethics rather than medicine.
• Design a thought experiment in which the insanity defense and civil commitment are both abolished, and identify what voluntary help would remain for people in distress.

See also

• Szaszian studies
• Court-ordered outpatient psychiatry
• Psychiatric coercion and human rights
• Problems in living
• The Rosenhan study
• Hearing voices groups
• Psychiatry