Evening star. [volume] (Washington, D.C.) 1854-1972, 1954-12-07
Durham cuse

The Durham case seems to have
lighted the spark Of q raging contro-
verSy among your readers. It is charged
that the decision in the Durham case
violates the natural law, that is, that
it Is immoral. On the other side we
have broad generalizations seemingly
denying the rational and moral nature
OF man. 1t does not seem to this writer
that the problem of criminal capacity
need be looked at in such strong light.
The "right-wrong" test. properly un-
derstood. is not in conflict with modern
science. Neither is the Durham test
an attack on traditional philosophical
or moral principle.
What is the principle involved?
The opinion in the Durham case,
calling upon the moral and legal tradi-
ton Of Western civilization as author
ity, states it simply: Our collective
consciences will not allow punishment
where 1t cannot impose blame"
Does the "right-wrong" test place
blame where it does not exist?
This same Western tradition holds
that the essential and distinguishing
characteristic of man is his nationality,
that is, his understanding and free will.
1t is the possession Of those faculties
that makes man accountable for his
actions. To those faculties are adj
dressed the command of civil and moral
law. To remove all trace of respon-
Sibility something must so affect this
nationality as to deprive the individual
of its use in forming practical judy
mentS Of right and wrong. Fully under
stood this test is far more inclusive
than its critics assume. Decisions, hal
lucinationS, obSesSive beliefs, abnormal
thinking. even Irresistible impulse
to mention some Of the items referred
to in the opinion Of the court-all affect
persons apprehension Of things and
consequently his ability to make prac-
tical judgments. Numerous reported
cases have so held. Many fail to under
stand that the test is not concerned
with an abstract ability to tell right
from wrong, such as psychiatriSt
might be capable Of employing In clini-
cal examination. It is concerned with
the practical ability to do so with refer
ence to the individuals own conduct
at the time he acts. Its viewpoint is
not descriptive of the cause or diagnosis
Of mental disease, although it recog-
-nizes mental disease as well as nuner-
GUS other causes as taking away or
lessening responsibility.
The "right-wrong" test does not at
tempt to measure degrees Of culpability.
It tests only total lack of RESPONSE
bility Shadings of blame are taken
into consideration after verdict through
sentencing, place of confinement, parole
and pardon.
Is the proposed test of the Durham
case contrary to natural law?
The test is whether the criminal act
was the product of mental disease or
defect. It is claimed that this encom-
passes things not covered by the fright
wrong" test. Assuming this, where is
moral principle disregarded? A law
that necessarily Furnishes where there
is no blame is clearly wrong. But law
that fails to punish where there is
blame or blame in slight degree, can
hardly be called an unjust law. 1t
should be called a merciful law, how
ever imprudent and dangerous such
mercy might be considered.
The controversy over moral principle.
however, has obscured a major aspect
of the case: The practical use Of such
tests in the courtroom and their effect
on public safety. Neither of the tests,
old or new, are at variance with moral
principle, so their acceptance or rejec-
tien depends on these practical grounds.
Land0n G. DOwdey.