ABSTRACT
Abolition of the defense of insanity has received exhaustive attention in the literature; the informed reader is entitled, therefore, to be notified of where the argument leads so that he may avoid the sharper irritations of redundancy. In accordance with the thesis of separation of the mental health law and the criminal-law powers to incarcerate, this chapter proposes the abolition of the special defense of insanity. The major commissions of inquiry in the United States and in England have been less than compelling on the underlying justifications of this defense. The justification for the special defense of insanity offered by the English Royal Commission on Capital Punishment carries the matter no further. Historically the special defense made good sense in relation to one punishment. Capital punishment infused it with meaning. The number held as not guilty by reason of insanity in the United States as a whole and in some states will illustrate the relative rarity of the special defense.
