Further Thoughts On Abortion, The Death Penalty, Mental Illness, and M’Naughten
posted by Dan Filler
In a recent post about mental illness and the death penalty, I attempted to raise the question of how some abortion opponents justify their support for executing people with mental illness. In particular, I wondered how such an inidividual would deal with some future research which allows us to predict whether a fetus will have an exceptionally high disposition to violence – and thus to murder. For the sake of this hypothetical, at least, imagine that this research actually tells us that a person with X genetic makeup will try to kill someone later in life. Could one oppose abortion of this fetus, while simultaneously approving execution of that person, in adulthood, when his overwhelming disposition ripens into an actual murder?
Rick Garnett offered comments which helped me recognize that my own language was imprecise. I asked whether such new research might logically provide a moral justification for “pre-emptive abortion” of a likely future killer. I now see that this sounds like I was making a utilitarian argument, which was not my intent. Rather, I meant to suggest a couple of things. First, we know that many people on death row have mental health issues – so many that one can now infer, and future research could conceivably establish, that many people on death row are there as a but-for result of their mental problems. Second, if one supports execution of individuals who would not be there but-for the mental problems, one essentially supports execution of people where free-will is not the sole, or even determinative, explanation for their acts. That is, one supports execution of individuals who are, in at least some sense of the word, innocents. Third, this argument suggests that the distinction between the “inncoent” fetus and the “guilty” murderer is far less clear cut. And it suggests that if the information we might need to know about a person to determine whether they will kill can be obtained pre-birth, any moral justification for execution at a later date might have at least some force at the earlier date as well. I am not claiming that one actually should abort for these reasons. I’m merely questioning how one can call the killing of the adult any more or less “retributive” than the abortion, if the factor that created culpability – say, a mental illness – existed both before birth and after. The only thing that changed was the actual fact of a killing, but a killing that was essentially beyond the offender’s free will.
The obvious retort to all of this is that the criminal law does not allow execution – or even conviction – of an individual whose crime is caused by a mental disease or defect. The problem is that the dominant test for insanity today, the M’Naughten rule, provides a defense only when a person is not aware of the nature and quality of his act (e.g., he thought he was cutting a melon, but it was really a head), or, if aware, did not know the act was wrong. Notably missing from this standard (but present in the old ALI version of the insanity defense, which became far less common after the assassination attempt on Ronald Reagan) is a defense for individuals who cannot control their acts. Yet if support for the death penalty among abortion opponents hinges, as I suspect it must, on the idea of free will – the notion that the offender has transcended his early innocence and now makes decisions independently, and thus fully culpably – must not that abortion opponent exclude from execution any person who cannot control his act?
September 26, 2006 at 11:13 am
Posted in: Capital Punishment
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Responses (1)
Karole - September 26, 2006 at 8:05 pm
I am a little unsure as to what type of person you have in mind. If a person does not benefit from the M’Naghten rules, who else should avoid the requisite penalty for murder on the basis of what you call “mental health issues”? I don’t wish to claim research will not in future show the but-for causation of death row convicts you ponder, but let us be clear on what type of mental problems should be sufficient to render a person unfit to be punished.
As for your comparison with abortion, I think it is an imperfect comparison. After all, someone – a foetus – with a predisposition to murder has committed no crime. I don’t think you can say the death penalty is only justified for persons who have committed murder if it is also justified for a person who might kill in future. The question is individual responsibility, and when punishment is appropriate. It is not appropriate surely for a person who has committed no crime; and it is appropriate where a person has committed a crime, unless they have a valid defence. The interesting question you should address is whether the insanity defence needs to be changed. For example, should a defence of diminished responsibility (see Ireland’s 2006 statute) should reduce a crime to manslaughter. Comparisons with abortion are somewhat unhelpful, in my respectful opinion.
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