The Insanity Defence Revisited: To Retain or Abolish? The Study from the UK and US Regimes

Abstract

Despite being subjected to various criticisms, the insanity defence should be retained, although a reformation is highly recommended. It is essential that some mentally disordered offenders who are non-culpable agents under criminal law are exempted from criminal responsibility and punishment by the special defence, not by other ordinary defences. The defence not only reflects several moral principles of criminal law as mentioned above but it also allows the mentally disordered offenders to be prosecuted and handled under the ‘alternative’ criminal justice system, which means that these offenders would be diverted to a more therapeutic system for a rehabilitation rather than the ‘ordinary’ punishment-based criminal justice system. For without it, some severely mentally disordered offenders will end up in prison. Hence, this is unjust and contrary to the principles of criminal law, and furthermore, the purpose of rehabilitation would not be fulfilled. This paper will support the argument to retain the defence by first exploring the rationale behind the defence itself as well as examining the current legal insanity tests under the UK and US jurisdictions, following by the critical analysis of the arguments for the abolition and retention. Lastly, it will conclude by explaining why the defence should be retained.