Evening star., 1956-03-11
A NEW APPROACH
By RICHARD G. BOARD, MD.

a layman and as a psychiatrist. In
neither role do I presume to repre-
sent any segment of opinion but my
own. I would like to help resolve
some prolonged conflicts between
psychiatry and the law.
The Monte Durham DECISIONS
progress in finding new methods of
determining criminal responsibility
places us in a position to subject
the concept of criminal RESPONSE
bility itself to logical analysis. This
very old concept contains three un-
related ideas. Eacn of these ideas
delineates a characteristic attribut-
able to every criminal. They are:
l. A criminal may or may not be
accountable for his crime Gndivi-
dual responsibility;
2. A criminal, If punished, may or
may not be good example before
the law as a warning to others (de-
terrent efficiency;
8. A criminal may or may not
be successfully rehabilitated by pun
ishment efficient puniShability).
The first haracteristic-indi
or moral reSponSibility-has COM
pletely overshadowed and excluded
from view the other two ideas. My
belief is that we shall never achieve
q satisfactory solution to the prob
lem of criminal responsibility un-
less we abandon our attempts to
discern individual or moral respon-
sibility In criminals - either the
mentally Ill or the mentally sound
and concentrate instead on de-
Gliding. first. whether any given
criminal will be a good example
before the law as warning to
others. and second. whether punish
ment will efficiently rehabilitate
him.
Virtue Of Decision
One of the virtues of the Durham
decision is its explicit statement
that the establishment of criminal
responsibility is concerned with rem
dering moral judgment of the
criminal:
we permit it (the jury to
perform its traditional function
which y. is to apply our inherited
ideas Of moral responsibility to in
dividuals prosecuted for crime.
Juries will continue to make moral
judgments still operating under the
fundamental precept that our COL
lective conscience does not allow
punishment where it cannot impose
blame"
If an individual is criminally re-
sponsible, he is morally responsible,
and If he is morally responsible he
can be judged morally guilty. Con-
sequently judgment of guilty
currently means two things:
/. The accused committed the
crime; ~
2. The accused was morally guilty
IN committing the crime.
All of the laws endeavoring to es-
tablish criteria for determining
criminal responsibility, from the
MNdghten rule to. the Durham
decision, have had as their purpose
the selection of those who can be
appropriately subjected to a moral
judgment. The assumption is that
moral Judgment of the individual by
the state is necessary and justi-
fled procedure. This assump-
tion has been an implicit premise
running through the entire history
of the laws concern with criminal
responsibility.
Some Objections
This premise. that the court
should render a moral Judgment
upon a criminal, deserves to be ex-
amined. Several objections, vary
ing in viewpoint and validity, can
be mustered against it.
First, the rendering of a moral
Judgment of the criminal in the
courtroom is really redundant. The
law that forbids an act implicitly
denounces it as immoral, no mat
ter who commits it. So moral judg-
ment OF the individual at the time
OF conviction is unnecessary.
Second, the current doctrine of
separation of church and state re-
strains the state from intruding
upon mans relation with God.
Render therefore unto Caesar the
things which are Caesars, and unto
God the things which are Gods"
Is the biblical Injunction on this
matter That moral judgment of
the individual Is the business of
Caesar or any State is open to
serious question.
Third, this procedure of moral
Judgment of individuals by their
peers rather than judgment of their
acts by laws departs from the con-
cept OF government by law, not
men. When IL persons, not mem
bers of the clergy, are asked to
render moral judgment on other
individuals, they run afoul of the
Sermon on the Mount: Judge
not. that ye be not Judged" This
injunction certainly must inveigh
against moral judgment of indi-
viduals by laymen.
Fourth, moral Judgment of the
individual is problem about which
no science, including psychiatry, can
say anything scientific. There can
be no scientific criteria for moral
judgment of an individual, not even
via the roundabout method of
establishing criminal responsibility.
In the Durham decision, for ex-
ample. whether the criminal per-
formed his crime as the result of
mental illness is deemed the crucial
criterion in deciding if he is to
receive moral judgment. Mental
Illness" mental normality,"
pathological impulse" normal
impulse" etc., are psychiatric terms
which have nothing to do with
moral responsibility. Similarly,
heaven" "soul," "free will, moral
responsibility" are all terms in a
realm of discourse foreign to
science. This does not invalidate
either set of terms but it does mean
that science cannot deal with
metaphySical concpptS T'rvjno Tn