Comments on: Further Thoughts On Abortion, The Death Penalty, Mental Illness, and M’Naughten http://www.concurringopinions.com/archives/2006/09/further_thought.html The Law, the Universe, and Everything Sun, 22 Nov 2009 08:31:00 -0700 http://wordpress.org/?v=2.8.3 hourly 1 By: Karole http://www.concurringopinions.com/archives/2006/09/further_thought.html/comment-page-1#comment-56928 Karole Wed, 27 Sep 2006 03:05:37 +0000 http://www.solove.org/archives/2006/09/further-thoughts-on-abortion-the-death-penalty-mental-illness-and-mnaughten.html#comment-56928 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. 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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