Insanity and the Law, Part II: Toward A Saner Insanity Defense--The Durham Case

The Durham case is a landmark in modern criminal law.

In 1951, Monte W. Durham was indicted in the U.S. District Court for the District of Columbia for housebreaking and grand larceny. The defense asserted by his trial counsel was that Durham was of "unsound mind at the time he committed the offense." Durham's insanity defense was rejected by the trial court on the ground that it had not been proved that Durham "didn't know the difference between right and wrong." He was found guilty and sentenced to a term of three to ten years imprisonment.

Durham appealed. He was indigent, and the Court of Appeals appointed Abe Fortas to represent him on the appeal. Fortas was known to be interested in psychiatry. Washington in the 1940s and 1950s was an important center of psychiatry and psychoanalyses, and Fortas counted a number of leading psychotherapists among his friends. He asked me to assist him in writing the brief.

As of the 1950s, the standard of responsibility generally applied in a criminal prosecution in which the defendant raised the defense of insanity was whether the accused knew the difference between right and wrong at the time of the offense. This test (known as the M'Naughten rule) had been formulated by the House of Lords in England in 1843, and it reflected the morality and psychology of early Victorian England. It antedated the revolution in psychiatry inspired by Sigmund Freud and others. In practice, this test excluded psychiatrists and psychologists from participating in a meaningful way in the criminal trial process. They were forced to testify in terms irrelevant to their expertise and were frequently blocked from communicating information to the Court concerning the defendant's mental condition. Its rigid application produced some indefensible results.

At the instigation of Judge David L. Bazelon, the Court of Appeals for the District of Columbia circuit had been searching for an appropriate case in which to reexamine the insanity defense. The appointment of a lawyer of Fortas' stature indicated that the Court of Appeals intended to use the Durham appeal as the vehicle for this reexamination.

After more than four decades, I can still recall the substance of the first discussion of the case that Abe Fortas and I had in his office. "The law in this area needs to be changed," he said. "The existing test is obsolete and irrelevant. We need to devise and propose to the Court a new standard of criminal responsibility. We need to open the door for a contribution by psychiatry to the criminal law." We wrote a psychiatric brief - probably among the first to be written - in which we described Durham's background, his mental condition to the extent it was revealed by the record in the case, and the deficiencies in the prevailing standard of responsibility. In our brief, Fortas urged that the right-and-wrong test be abandoned, and that a new standard be adopted that would permit a trial court to hear comprehensive information concerning the accused's mental condition and that would allow psychiatrists to make a meaningful contribution to the criminal trial process. His premise was that greater knowledge concerning the accused would enable judges and juries to reach more just results. His objective was to break down the artificial barriers to communication imposed by the existing rule.

On July 1, 1954, the Court of Appeals reversed Durham's conviction. The opinion of the Court, written by Judge Bazelon, announced a new standard of criminal responsibility: whether the accused suffered from a mental disease or defect, and whether the crime was a product of that disease or defect (Durham v.United States, 214 F.2d 862). The opinion was acclaimed at the time as a revolutionary development in the administration of criminal justice.

In the four decades since the Durham decision, there has been a tremendous volume of litigation and legislation concerning the insanity defense. An enormous amount of literature has been written on the subject. The test adopted inDurham by the Court of Appeals has long since been superseded by other standards in the District of Columbia and in the federal courts generally.

Measured by present-day standards, our 1954 brief was relatively unsophisticated. In retrospect, we were unduly optimistic about the contribution that psychiatrists and psychologists could make to the trial of criminal offenders. We overestimated the knowledge of criminal behavior that psychiatrists possess, as well as the available resources, and we underestimated the public's hostility to a claim of insanity as a defense to a criminal charge.

But Durham stands as a significant benchmark. As stated by one leading commentator, Professor Abraham Goldstein of the Yale Law School, the Durham decision "created a feeling of ferment," and it had "a tremendous and continuing impact upon the course of the debate" concerning the appropriate standard of criminal responsibility, a debate that continues to this day.

Abe Fortas recognized the need for reform in this area of the law, and he presented a persuasive case for change.