Copyright (c) 2015 The University of Montana School of Law
Montana Law Review
ARTICLE: ARBITRARY AND GODLIKE DETERMINATIONS:
INSANITY, NEUROSCIENCE, AND SOCIAL
CONTROL IN MONTANA
Montana Law Review
76 Mont. L. Rev. 281
In 1979, Montana broke from the rest of the nation and adopted a novel approach to dealing with the mentally ill who commit crimes: abolishing the insanity defense. The Montana Legislature discarded the insanity defense primarily out of concern about the unscientific nature of the mental health field and the resulting potential for its abuse as a defense. 1 The sponsor of the abolition legislation asserted that psychiatry was "unscientific," psychiatrists made "arbitrary and godlike determinations," and psychiatrists and social workers needed to be "removed" from the criminal justice system. 2
Even though insanity was raised in less than one percent of all criminal trials, 3 Montana embraced the notion that - from the perspective of society and crime victims - people with mental illness who commit crimes are criminals first and mentally ill second. 4 After abolition, mental illness was no longer relevant as to whether the defendant was insane at the time of the crime; instead, mental illness became only relevant as to whether the defendant satisfied the elements of the crime charged. 5 In doing so, the Montana Legislature eliminated insanity as an affirmative defense, but made a defendant's mental illness potentially relevant to every criminal offense with a mental state element.
The bald reality of abolishing the insanity defense is that people who are insane - and were insane at the time of the offense - are convicted of crimes and treated like criminals. For this reason, the morality of Montana's ...
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