Under criminal law, assignment of blame for a commission of a serious crime requires establishing two factors: the actus rea (“guilty act”) must be accompanied, at the moment the crime is committed, by mens rea (“guilty mind”). Under common law, “the act is not culpable unless the mind is guilty.”
Mens rea is a tenebrous idea, and centuries of litigations in numerous jurisdictions around the world have only increased its vague and slippery nature. In 1957, the Model Penal Code (MPC) clarified the concept, assigning five levels of mens rea, which reflect the degree of culpability or the seriousness of the crime:
- Strict liability: culpability is inherent in the act itself and mental state is irrelevant. This generally applies only to civil litigation and tort law.
- Negligence: a “reasonable person” would understand that the conduct is forbidden under the attendant circumstance, and that “substantial and unjustifiable risk” that it will cause a predictable adverse outcome.
- Recklessly: the actor himself knows and “consciously disregards” a substantial and unjustifiable risk may exist that the action is illegal, or will lead to a prohibited result.
- Knowingly: the actor “is aware to a high degree of certainty” that his actions are inherently illegal or will lead to an illegal result; or that attendant circumstances exist that make them so.
- Purposefully: the actor has the “conscious object” of committing the crime for a perceived gain, or believes or hopes that attendant circumstances exist that will advance his purpose in the face of the illegal act.
To establish mens rea, and therefor assign culpability, an accused person must be shown to be of sound mind, and one of these criteria must be met.
The concept of insanity as it relates to culpability is another slippery idea. In 1843 Daniel M’Naghten, deluded into believing that the Tory party wanted to assassinate him, attempted preemptively to murder Prime Minister Robert Pell. (Being crazy, he killed Pell’s private secretary by mistake.) He was acquitted by reason of his insanity.
Interest in this case led the House of Lords to ask judges across England for their thoughts on insanity and culpability under the law. The result of their reflections became the M’Naghten Rules, which prevailed throughout European and American law for the next century or so, and persist in some form to this day. In part, the judges wrote:
“Jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proven to their satisfaction; and that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.”
The MPC defines it thus:
“A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental disease or deficit, he lacks substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.”
There is a lot of wiggle room still, but to establish insanity and demolish mens rea, five issues have to be considered:
- There is a presumption of sanity. The burden to prove insanity lies with the defense,
- There must be a mental disease or defect,
- There must be an inability to appreciate that the conduct is wrong, and
- The mental disease must be the cause of the failure to recognize that wrongness.
- All these conditions must have been present when the act was committed.
It is important to remember that the concept of mens rea and the M’Naghten rules are intended to evaluate mental states as they may contribute to the commission of a specific crime. They are not meant to evaluate ethical or moral conduct itself, the ethical performance of elected officials who hold positions of public trust, or the abstract contemplation of good or evil. By themselves, they do not establish guilt or innocence.
Competency is another factor that may be affected by insanity, but mens rea and the M’Naghten rules do not apply to evaluation of competency. In criminal law, competency requires us to be able to understand the charges against us, and to participate in our own defense; without these abilities, we are held incompetent to stand trial The rules do not require that we be sane. A hearing separate from the guilt phase is held to determine our competency.
In the real world, there are multiple spheres of competence: competent to manage our own affairs, competent to practice a profession, competent to be president of the United States. These all require varying levels of knowledge, judgement, and skill, but not necessarily sanity. Different criteria apply to each domain. If a mental defect interferes with our ability to care for ourselves, or perform our jobs, or execute the duties of a public office, different criteria apply. In the case of our failure to care for ourselves, guardianship statutes are used to protect us. In the case of incompetence at work, we can be fired. Every state has boards that license and monitor the competence of various professionals. In the case of incompetence in elected public office, often our main resource is to wait out the term and then elect someone else.
For most public offices, there are also recall and impeachment laws to protect us against active political malfeasance rather than incompetence. Such laws require a wrongful act before they can be invoked. To impeach a president, for instance, the Constitution requires that he have committed “high crimes or misdemeanors” during his time in office. With culpability at issue, the principles of mens rea, and the M’Naghten rules, come into play. Ironically, a president with mental defect who did not appreciate that his actions were heinous when he did them might, in principle, not be impeachable. Because of the presumption of sanity, for a president to succeed in this defense and remain in office he would have to prove his own insanity under the M’Naghten principles.
In the case of the President, whether his insanity makes him incompetent to serve in the office becomes a serious question. The 25th Amendment deals with the succession if the sitting President is unable to continue serving. Section 4 deals with the possibility that the President becomes incompetent. It reads:
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
In theory at least, a president could survive an impeachment trial by proving he was insane, but that alone would not interfere with his continuing to hold the office, since competency and insanity are determined by different means. Insanity alone is not an automatic disqualifier for a president.
To remove the president in such a bizarre circumstance, the Vice President and a majority of the principal officers of the executive departments (the Cabinet) would have to prove, at a separate hearing with the Speaker of the House and the President Pro Tem of the Senate, that that his insanity rendered the President “unable to discharge the powers and duties of his office.” The president could resume power simply by declaring himself to be competent. If the VP and Cabinet reassert their claim, then Congress decides the issue by a two-thirds vote of both houses. Imagine the turmoil during the month it would take this to play out, and who is in charge during that time? Let us hope we never find out.
Before you dismiss this scenario as some sort of wildly speculative political science fiction, consider what you already know about what actually goes on in Washington today. It appears to be populated by humanoid beings who appear superficially terrestrial, but who strangely lack joy, empathy, and other human qualities. Conscience and common sense have both been supplanted by ideology and an uncanny sense for ferreting out money. Like computers, the output of these beings, both individually as talking heads and collectively as creators of law, has an oddly structured, repetitive quality much like the output of digital programming. In tone and content this material ( both campaign rhetoric and new law) seems to be conflated statute and scripture, retrieved from storage in a cloud, and interpreted with literalness that is virtually impossible to achieve outside of a CPU.
These beings store information internally in LIFO stacks, and their random-access memory is limited and slow. The President himself, and until recently the Speaker of the House as well, are a peculiar shade of orange which resembles, perhaps coincidentally, the light reflected from the surface of the planet Mars.
Today, a president declaring himself insane in order to protect his incumbency somehow no longer seems so strange.