A new paper published on-line by Georgetown Law looks at a little known aspect of criminal insanity: The Deific Decree pleading. This can be applicable when a defendant seeks to invoke the insanity defense by claiming "God had instructed me to kill..." I had thought these cases were handled like any other insanity plea. The author provides a lot of case law which demonstrates the difficulty courts have had in distinguishing between areas of constitutional freedoms: First Amendment freedom of religion, assignment of culpability and Fifth Amendment issues. The pleading of Deific Decree has had an unequal and uneven application under the M'Naghton Rule also called the "right-wrong test" (which remains the insanity test in most states):
The paper includes quite a bit of discussion on DSM, some of which is reproduced here. This psychiatric scheme draws a bright line between delusion as harmless fantasy, delusion as mental illness and religous belief. This may not be justified.
I might add an editorial comment. The ancient Greeks settled this issue long before Plato and Aristotle. There is a fundamental question which can be asked: "Can an organized hierarchy such as is seen in nature exist in the absence of intelligence?" Those who answered "Yes" were atheists. Those who answered "No" were either Deists or Theists. There is no way to prove such an assumption either way. So it is fair to call either answer a "faith proposition" or a "delusion." Clearly some other definition of "delusion" is required. Whether DSM adequately addresses this issue is left to the reader. Finally, the author calls for an end to the Deific Decree pleading.
From the paper:
The deific decree doctrine allows criminal defendants who believe that God commanded them to kill to plead not guilty by reason of insanity to murder. The insanity defense has remained moored to its Judeo-Christian roots, which has artificially limited its bounds. While civil law has focused on individualism within religion, criminal law has imposed state-defined limits on what religion (or socially acceptable religion) is. This Article argues that the deific decree doctrine is too closely tied to artificial limits on insanity imposed by 19th century developments in the mental health profession and criminal law. The doctrine unacceptably privileges certain mentally ill criminal defendants whose delusions fit within an outdated model that is not psychiatrically valid. Moreover, it has disparate gender consequences that harm women with postpartum psychosis who kill their children while supporting men who kill their female partners. The Article concludes by calling for the end of the deific decree doctrine and expanding the insanity defense so it more accurately tracks psychiatric understanding of mental illness.
State of Washington v, Crenshaw (1983)
When Robert Crenshaw and his wife were on their honeymoon in Canada in 1982, Robert got into a fight and was deported back to the United States. He sought lodging in a motel room in Blaine, Washington and waited for his wife. Upon her arrival two days later, Robert had the immediate suspicion that she had been unfaithful, that it “wasn’t the same Karen . . . she’d been with someone else.” Robert took his wife into the motel room and beat her unconscious. He then went to a store, stole a knife, and stabbed his wife twenty-four times. After stabbing her, Robert left his now dead wife, drove to a farm where he had previously worked, and borrowed an ax. When he returned to the motel room, Robert decapitated Karen. At trial, the court faced a quandary: were Crenshaw’s actions religious or insane, and what did the answer say about his criminal responsibility. When Robert was apprehended and charged with first-degree murder, he argued that he should be found not guilty by reason of insanity. The case ultimately reached the Washington Supreme Court, which upheld his first-degree murder conviction.
The question divided the Washington Supreme Court, which, like so many jurists before it, struggled to draw sensible boundaries and bridges between faith, madness, and responsibility. The legal system was forced to grapple with a doctrine that was making its reappearance in criminal trials after a long absence: the doctrine of deific decree.
Unusual minds that turn violent raise among the most difficult questions of criminal responsibility. When aberrant thoughts take on a religious cast, the problem becomes even more complex, as judges must determine whether religious fervor has slipped into mental illness and what impact either mental state has on culpability.
EARLY CASES – 1843-1915
There is a well-established history of exonerating or finding not culpable people who are considered “insane.” Pronouncements about the problem of punishing mentally impaired criminal defendants are longstanding. Plato wrote that insane murders should endure one year of exile instead of the death penalty that other murderers should face. Hebrew commentaries exonerated insane criminals. During the Middle Ages, the insane were “routinely exonerated,” a practice that continued in English common law. Sir Edward Coke wrote “the act and wrong of a mad man shall not be imputed to him.” Blackstone agreed: “idiots and lunatics are not chargeable for their own acts.” The key question was determining who was insane. Deific command was entangled with this issue for centuries in Anglo-American law. Justice Tracy of King Edward’s court in the 13th century created what was known as the “wild beast” test for insanity: “the jury that it should acquit by reason of insanity if it found the defendant to be a madman which he described as ‘a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast, such a one is never the object of punishment.’” The “wild beast” test set the standard for English criminal law until the early nineteenth century. The English case Rex v. Arnold in 1724 notedthe possibility of a “visitation by God” in the jury instructions: “If he was under the visitation of God, and could not distinguish between good and evil, and did not know what he did, though he committed the greatest offence, yet he could not be guilty of any offence against any law whatsoever, for guilt arises from the mind, and the wicked will and intention of the man.” “Under the visitation of God” was used as a general term for delusional behavior.
In 1800, James Hadfield, believing that he was acting on God’s orders, attempted to assassinate King George III. Hadfield received a jury acquittal based on the fact that he “appear[ed] to be under the influence of insanity at the time the act was committed.” English criminal law went back to the stricter wild beast standard a few years after Hadley, until M’Naghten was decided.
The deific decree defense appears for the first time in American jurisprudence in 1844. Commonwealth v. Rogers is a notable case in American law not only for the first appearance of deific decree, but also for importing the M’Naghten “right-wrong” test – the current prevailing test of insanity – from England.22 M’Naghten, a case decided the previous year, held that the test for insanity was “whether the accused at the time of doing the act knew the difference between right and wrong.” The doctrine reflects a fundamental principle of criminal law: because people have the ability and free will to choose socially acceptable behavior, then the state can hold people responsible and punish them when they engage in socially unacceptable behavior that violates the law. For people who are unable to make this choice, the state does not classify them as blameworthy or punishable. Thus, the insanity defense “separates the mad from the bad.” M’Naghten uses a cognitive standard as a dividing line between madness and badness. That is, the individual must suffer from a “disease of the mind” that overwhelms her ability to know socially acceptable behavior or emotional impetuosity. M’Naghten also requires total impairment, as reflected in the Rogers requirement of a “full belief;” people who are only partially affected by insanity cannot succeed under M’Naghten.
This Article traces judicial attempts to navigate these three paradigms for understanding abnormal thoughts – religion, psychiatry, and criminal law – by examining the 170-year history of a doctrine predicated upon their collision, the deific decree defense. Deific decree holds that if God commanded a defendant to kill another person, then the defendant can successfully plead not guilty by reason of insanity to first-degree murder. Although the basic statement of the doctrine has changed little across its long existence, its operation and underlying theory have shifted considerably as the social, judicial, and scientific understandings of religion, mental illness, and criminality between which the doctrine mediates have themselves undergone transformations.
Four claims animate the Article.
First, the emergence and early articulation of deific-decree doctrine (1844-1915) illustrates the extent to which Christianity bound together judicial and psychiatric notions of religion, mental illness, and culpability during the formative years of what came to be the modern insanity defense. Second, across 1915-1982, the judiciary expanded its conceptions of insanity and religion in ways that untethered mental illness, culpability, and religion itself from Christian norms. These years saw deific-decree defense recede in deference to more-capacious definitions of insanity. Third, the narrowing of the insanity defense following the acquittal of John Hinkley by reason of insanity for shooting Ronald Regan lay the groundwork for the reemergence of deific-decree defenses. These twinned developments illuminate the extent to which the Court’s reinterpretation of religion as a personal choice put faith on a collision course with culpability – and the free choices presumed to underlie it.
The protagonists of this argument are the experts. As judges who specialize in questions of culpability have confronted defenants who perceive other-worldly commands, they have had to make choices about the extent to which they will draw on and defer to theologians and psychiatrists. As the mental-health field professionalized and courts increasingly sought to avoid entanglement with religion, judges asked psychiatrists to carry more of the burden of explanation within the judicial system, and psychiatrists willingly accepted. Ironically, as psychiatrists increasingly claimed the ability to map out normal and abnormal human behavior, their skill at capturing the impact of religion and culture on behavior diminished. As it became pervasive, expert mental-health testimony provided ever less guidance to judges seeking to navigate religious compulsion and culpability.
Discussing religion as a concern of criminal law rather than as the subject of First Amendment litigation brings the the tensions that the Article explores into relief. Too often, baroque First Amendment doctrine encourages scholars to treat collisions between law and religion as doctrinal brainteasers solvable through clever analysis rather than as emblematic of deep, unresolvable tensions. Here, the criminal context makes visible how legal conceptions of religion respond to and collide with shifts in popular ideas and expert knowledge. Although modern First Amendment law seeks to construct a firm divide between the rationalist legal reasoning and humanistic religious faith, this neat dichotomy collapses in deific decree cases. Courts cannot evaluate deific-decree claims without entering into defendants’ beliefs. Defendants and their lawyers encourage this entanglement by renouncing claims that the killer was modern-day Joan of Arc on a prophetic divine saintly mission. Instead, they argue that the defendant both believed himself compelled to act by divine instruction and that the defendant’s perception of that
divine instruction was mistaken and insane.
The next major case to invoke deific decree, the trial of Charles Guiteau for the assassination of President Garfield in 1882, received substantial attention,although mostly due to the victim. Guiteau’s case generated a trial record 3,000 pages in length and illustrated new legal shifts in the framing of mental health, religion, and criminal responsibility. Mental health doctors saw Guiteau’s trial as a great opportunity to showcase their developing expertise and authority in a trial that captured public attention. The court system was also under pressure to perform its expertise on criminal punishment to a wider public audience. Given that the President had died after prolonged suffering within public view, this pressure included finding the defendant sane so that he could be punished at the end of the trial. As a result, the judge for this case not only had to steer the jury through the competing testimony of multiple “experts” on Guiteau, he also had to shape the jury’s – and the public’s – perception of insanity, religion, and criminal responsibility.
At this time, neurologists and psychiatrists still felt that insanity was the end of a continuum that determined normal psychological health. Above all, they agreed that insanity was a physical disease, that emotional problems could cause mental problems, and that insanity was curable. During the 1880s, the definition of mental illness was also expanded to include not only “psychoses,” but also “neuroses” and “character disorders.”
Despite their unanimity on the physical nature of mental illness, mentalhealth doctors were sharply divided on the relationship between mental illness and criminal responsibility. Conservatives supported a narrow interpretation of M’Naghten, rejected the idea of emotional and behavioral differentiation for mental illness, and did not believe that insanity occurred throughout the defendant’s life. Liberal doctors rejected behavioral determinism, thought that emotions were significant, and disagreed with a narrow reading of M’Naghten.
THE LATENT PERIOD OF DEIFIC DECREE – 1915-1983
Supreme Court Jurisprudence On Religion
As scholars Grant Morris and Ansar Haroun argue, Supreme Court religious jurisprudence is the direct opposite of their jurisprudence on pornography: Only individuals “know” religion and while they know it when they see it, the Court does not. This Section briefly reviews the Supreme Court’s treatment of religion of the First Amendment. The cases in this Section underscore that the Court’s treatment of religion is tentative at best; that religion is defined by an individual’s “sincere belief;” and that the definition of religion has increasingly broadened. Though this Section demonstrates the Court’s increased willingness to expand its definition of religion beyond Judeo-Christian boundaries, its refusal to mine the details of what encompasses a religion and its insistence on separating religious beliefs from other types of beliefs hinders efforts to construct a coherent thesis out of Supreme Court religious jurisprudence.
In the 1890 case Davis v. Beason, the Court constructed a narrow definition of religion as a belief in a deity. “Religion has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.” This definition encompassed the conventional Judeo-Christian belief in and worship of God, and little else. In the same year, in Church of Jesus Christ of Latter-Day Saints v. United States, the Court characterized polygamy as a nonreligious belief. Polygamy did not receive the protection of religion because it was “contrary to the spirit of Christianity and the civilization that Christianity has produced.”
The Court kept the narrow Judeo-Christian definition of religion from Davis and Church of Latter-Day Saints for the next 71 years. In 1961, in Torcaso v. Watkins, the appellant argued that a state constitutional provision requiring an applicant for public office to declare a belief in God unconstitutionally infringed upon his freedom of belief. The Court agreed, holding that the Constitution prohibited the government from enacting laws that favor all religions to the disadvantage of nonbelievers or laws that favor religions based on a belief in God over religions based on different beliefs. In his majority opinion, Justice Black cited Buddhism, Taoism, Ethical Culture and Secular Humanism as examples of nontheistic religions.
DSM-IV allocates more room in its Glossary section to “delusion” than to any other term. According to the DSM, a delusion is a “false belief based on an incorrect inference about external reality that is firmly sustained despite what almost everyone else believes and despite what constitutes incontrovertible and obvious proof of evidence to the contrary.” Strikingly, the Glossary specifically excludes religious beliefs from the delusion category: “the belief is not one ordinarily accepted by other members of the person’s culture or subculture (e.g. it is not an article of religious faith).” The description goes on to describe false beliefs that use value judgments, e.g., “I am the most brilliant psychiatrist in the world.” These statements are considered delusions if the “judgment is so extreme as to defy credibility.” Then, the definition lists types of common delusions. Though “persecutory delusions,” “grandiose delusions,” and “bizarre delusions” are included, “religious delusions” are not. DSM 5 eliminates the specific carve out for religion and instead refers to an array of delusions: “Delusions are fixed beliefs that are not amenable to change in light of conflicting evidence. Their content may include a variety of themes (e.g. persecutory, referential, somatic, religious, grandiose…Delusions are deemed bizarre if they are clearly implausible and not understandable to same-culture peers and do not derive from ordinary life experiences.”
Delusions are only one part of the diagnosis of a mental disorder. One can be delusional but not have a formal mental disorder. The most common diagnosis for a person invoking deific decree is schizophrenia. Under the DSM-IV a schizophrenia diagnosis requires that a person have either two or more of five symptoms during a one-month period (delusions, hallucinations, disorganized speech, grossly disorganized or catatonic behavior, or negative symptoms such as affective flattening, alogia or avolition) or experience “bizarre” delusions.
Delusions are bizarre according to the Glossary if they “involve[s] a phenomenon that the person’s culture would regard as totally implausible” and according to the definition under schizophrenia if “they are clearly implausible and not understandable and do not derive from ordinary life experiences.” DSM 5 ends the bizarre/non-bizarre distinction and instead requires one of three symptoms: hallucinations, delusions, or disorganized speech. The previous classification was eliminated due to “limited diagnostic stability, low reliability, and poor validity.”
Research indicates sharp disagreement among clinicians as to what a bizarre delusion actually is. This confusion increases if the tested delusion has a religious theme or if the people have diverse ethnic or cultural beliefs. In a telling example, in one research experiment, clinicians classified vignettes that included the voice of God commanding individuals to baptize their newborn child, prepare a worship service, or sacrifice their child. The researchers concluded that the “essential determining factor in the ratings was not the dimensions of religious experience, but the degree to which religious experience deviated fromconventional religious beliefs and practices. The more unconventional the experience, the less religiously authentic and less mentally healthy it was deemed to be.” The least religiously authentic and most pathological vignette was God’s command to sacrifice the child – a story common to the world’s largest monotheistic religions.
Despite the biomedical framework of DSM-IV and DSM 5, they include cultural criteria without explaining why a predominant cultural belief would affect or override a biological explanation for mental illness. Thus, for a person receiving a deific command to kill, a clinician could either follow the religious exception for delusion and not find a mental illness, or characterize the deific decree as a bizarre delusion despite its correlation with known religious stories and diagnose the person as schizophrenic. Either way, the DSM does not provide a simple route for the clinician faced with such a problem. As the DSM presumes that delusions fit within a falsifiable framework, religion qua religion must receive an explicit carve-out or else perpetually risk falling within the realm of insanity. At the same time, since religion is not considered a characteristic of a delusion, the clinician must make a determination of what is considered religious in order to fit deific decree back into a mental illness schema. A plausible explanation as to why the DSM is so shaky on cultural context is that psychiatrists’ attention to the problem of culture was not internally derived. Instead, outside critiques, especially from gay rights activists angered over the DSM’s classification of homosexuality as a disease, spurred psychiatrists to make changes to the DSM in order to reflect their “sensitivity” to the impact of culture upon diagnosis. It is an open question of how substantive these changes actually were. The treatment of deific decree suggests not very. Moreover, the DSM assumes a close fit between a person’s culture and religion – religious beliefs are an outgrowth of a person’s culture. Arguably, a “culture” caveat for the DSM is most needed for non-majoritarian cultures and religions, not for majoritarian ones. For example, it is unlikely that a mainstream Catholic belief such as transubstantiation would strike most psychiatrists as a bizarre delusion. However, the DSM only grants deference to religious – and cultural– beliefs that are “ordinary,” e.g., the ones least likely to need explanation and protection.
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Commentary on the paper: