576

GREGORY ZILBOORG

The newer trends so ably and so earnestly represented by the expert witnesses in the Leopold-Loeb case, this most telling example of psychopathological criminal symbiosis, are alive in present-day American psychiatry, but thus far they have not materially affected the spirit or the procedure of the criminal law. The judge did sentence Leopold and Loeb to life imprisonment instead of sending them to the gallows; he may have been impressed, as he well might have been, by the weight of psychiatric expert testimony and by Darrow's magnificent, burning, and bitter appeal to scientific psychological and sociological analysis of the criminal and his crime, not crime in general. But the judge did find purely legal grounds on which to base his acceptance of the plea for mitigation. The law, some twenty years before the centenary of the Association and still at the present time, has found itself unable to be convinced by the views on crime which many psychiatrists have learned to adopt, although the psychiatrists' knowledge of man's motivations allows them to assert these views with all the power of scientific laws.

Some ten years after the Leopold-Loeb case was adjudicated, the Section of Neurology and Psychiatry of the New York Academy of Medicine, jointly with the New York Neurological Society at its regular meeting, discussed "Psychiatry and the Criminal Law." In this discussion the new scientific-humanitarian trends of modern psychiatry stood out sharply, as they had in a discussion in the same Academy some seventy years before, when Dr. Parigot read a paper on "Moral Insanity" and Judge Edmonds<sup>111</sup> carried the banner of progressive psychiatry. In this later meeting, on November 13, 1934, it was Bernard Glueck who represented the advance guard of psychiatry:

> The problem [of crime] obviously involves the complete social-economic structure and the tendencies of contemporary American civilization. . . . The only hopeful approach to the problem of criminal conduct lies in the application of a scientific individualized approach which has rehabilitation and reconstruction as its end in place of the traditional impersonal and more or less mechanical procedure that characterizes the legal approach to these problems. . . . It would not seem altogether visionary to think of the future court of criminal law as approaching more closely the characteristics of a clinic in human maladjustment. I believe that one can look forward to a day when these courts will indeed become social clinics for the amelioration and possibly the solution of the problems of adjustment to civilized communal living.

111 See pp. 558-559.

LEGAL ASPECTS OF PSYCHIATRY

577

They will then be dominated by a spirit of scientific inquiry, using every available facility for the promotion of meliorative and curative ends. These courts will be run by adequately trained people who will be subject to the same kind of professional scrutiny and supervision as is the physician of today.<sup>112</sup>

Psychiatry deals with the sources, the nature, the vicissitudes, and the effects of human thought and feeling, and human action and conduct. In order to be at all effective in the performance of this task, the psychiatrist must take into consideration not only the subjective, or internal world of influence that shapes the human being, but also the external world of influence that goes to shape and condition the human personality, namely, those influences which flow from the home, the school, the shop, the playground, the various social institutions which man has created for his guidance, including, of course, the institution of the criminal law. As far as the latter is concerned, I am entirely convinced, after studying many hundreds of criminal careers, that the chances of reformation of a given criminal are in reverse ratio to the amount of contact he has had with the law. It is for this, if no other reason, that the psychiatrist is concerned with the functioning of the law, as indeed he is with every other institution governing man's conduct as a member of society.<sup>113</sup>

Glueck despaired of any progress if we submit

> ... to the tyrannies and compulsions of those shibboleths of the law which insist upon a pursuit of values that have no relation whatsoever with the fundamental question of social security. I frankly admit that I have no interest whatsoever in those values which have as their objectives the meeting of the requirements of the rules of the game, called criminal justice. There is only one value which justifies the entire procedure, and that is social security. I believe that social security with the least incidental violence to the individual should be the outstanding aim and purpose of the criminal law, and I do not believe that any good can be achieved by a backward-looking worshipfulness of the traditional precepts and theories of the criminal law.<sup>114</sup>

It should be noted that this radical change of view with regard to the function of the criminal law, while characteristic of psychiatry, is also to be found in certain quarters of the legal profession—more among the teachers of law, of course, than among those who are engaged in the practice of it. Among these, Professor Sheldon Glueck of Harvard is to be singled out as the most consistent and active proponent of changes in attitudes and procedures. Professor Glueck is the representative of that section of American legal thought which is most avowedly and

112 J. Nerv. and Ment. Dis., LXXIX (1935), 192-193.

113 *Ibid.*, pp. 210-211.

114 *Ibid.*, p. 211.

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GREGORY ZILBOORG

thoroughly influenced by the recent contributions of psychiatry to the psychology of crime, criminology, and penology. There are of course others who are less openly or less directly but rather definitely influenced by the newer trends.

So much for a general survey of the trends. For details the reader will again have to be referred to the comprehensive work of Sheldon Glueck mentioned above,¹⁸ just as for the details of procedural reform or changes he will have to be referred to the excellent compilation, *Insanity as a Defense in Criminal Law*, by Henry Weihofen.

Nor is it deemed worth while at present to go beyond mere mention of the development of institutions for the criminal insane. These are administrative, organizational features of the growth of the psychiatric profession and are, strictly speaking, outside the scope of an essay on the legal aspects of psychiatry—as are, perhaps to a less extent, such plans as the “Pennsylvania Plan” for training in penal psychiatry. Mention should be made of the fact that the interest, and the ever broadening of the scope of this interest, in forensic problems led to the organization of a Section on Forensic Psychiatry of the American Psychiatric Association in 1934, with William A. White as its first chairman, and to the founding by Vernon C. Branham of the *Journal of Criminal Psychopathology* (1939).

What is left now to record briefly are certain procedural changes, or rather mileposts in the evolution of forensic psychiatric problems as far as certain practical procedural steps are concerned.

As is known to all who have some interest in forensic psychiatry, only the state of New Hampshire has a law which states that the question of insanity is a question of fact and not of law. This law was established by the decision of Judge Doe in 1866 and reformulated by Judge Ladd in 1871. There is no legal test of responsibility in New Hampshire; the question of sanity is determined by the superintendent of the State Hospital.

The best law thus far evolved by any state is the Briggs Law of Massachusetts, which was adopted in 1921. Winfred Overholser presented an excellent review and appraisal of the Briggs Law at the ninetieth meet-

¹⁸ Mental Disorder and the Criminal Law (Boston, Little, Brown, 1925); see also Glueck's *Crime and Justice* (Boston, Little, Brown, 1936) and *Criminal Careers in Retrospect* (New York, Commonwealth Fund, 1943).

LEGAL ASPECTS OF PSYCHIATRY

579

ing of the American Psychiatric Association in 1934, in which he summarized the essential features of the law as follows:

> The significant and unusual features of the law are three in number: (1) the examination is conducted by neutral, impartial experts; (2) these experts are selected by a professional department of the administrative branch of government, namely, the Department of Mental Diseases of the Commonwealth; (3) the examination is applicable to all defendants falling within certain clearly-defined legal categories, and is not dependent upon the supposed "recognition" of mental disease by the judge, defense attorney, or some other non-psychiatric participant in the proceedings.¹⁸

> It must be observed that this law unfortunately applies only to capital offenders, and that the opinions of psychiatrists are not admissible as evidence.

In 1925 the first report of the new Committee on Legal Aspects of Psychiatry of the American Psychiatric Association was published. The report was submitted by Dr. Karl Menninger as chairman. It marked a true turning point in the history of the problem, and Karl Menninger's name must rightly occupy an honorable place among the pioneers of an important and difficult task. His successors to the chairmanship of the Committee on Legal Aspects of Psychiatry—Kline, L. Vernon Briggs, White, Joseph W. Moore, Overholser, and Paul Schroeder—have continued the contacts with the American Bar Association through a committee of its Section on Criminal Law and Criminology. This committee functioned under the chairmanship of Professor Rollin M. Perkins, with two other members—Louis S. Cohane and Alfred Bettman.

Together these two committees have worked out ways and means for the education of the lawyer in psychiatric problems and for introducing reforms in our legal procedures in relation to mental disorders. Out of this coöperative effort a number of pronouncements have come which certainly presage a new and better day for psychiatric contributions to practical criminology. To use the words of Overholser, it would be folly to believe that all this came as a "bolt from the blue." "Significant steps

¹⁸ Am. J. Insanity, XCI (1934-35), 585; see too Deutsch, op. cit., pp. 404-406. It is also to Dr. Overholser that we owe the most succinct survey of the history of the coöoperation between American psychiatry and the legal profession: "Ten Years of Co-operative Effort," J. Criminal Law and Criminology, XXIX (1938), 23-36.

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GREGORY ZILBOORG

in progress result from the fermentation of ideas, and these ideas, in turn,
originate in the minds of progressive individuals."¹³⁷

In 1932 Louis S. Cohane exclaimed: "Let us not by a slavish adherence
to the forms of criminal law and procedure which were adopted for and
adapted to an age long since past, be behind the times in our methods of
handling the modern crime problem and criminals."¹³⁸ Cohane expressed
the general feeling which three years previously, in 1929, took the form
of a series of recommendations made by the Committee on Legal Aspects
of Psychiatry and accepted by the American Bar Association:

1. That there be available to every criminal and juvenile court a psychiatric service to assist the court in the disposition of offenders.

2. That no criminal be sentenced for any felony in any case in which the judge has any discretion as to sentence until there be filed as a part of the record a psychiatric report.

3. That there be a psychiatric service available to every penal and correctional institution.

4. That there be a psychiatric report on every prisoner convicted of a felony before he is released.

5. That there be established in every state a complete system of administrative transfer and parole, and that there be no decision for or against any parole or any transfer from one institution to another without a psychiatric report.¹³⁹

From the standpoint of historical value, it is difficult to overestimate
the progressive strides thus made, strides in which the legal and psychiat-
ric profession seek not only to talk a common language but also to estab-
lish a proper basis for common practice. However, from the standpoint
of historical perspective one should not overestimate the originality of
the effort or the accomplishment actually attained.

The process involved laborious work along a difficult road. As early as
1907 Sidney Schwab in St. Louis was successful in organizing an "Insane
Commission of the St. Louis City Jail." The Commission had no legal
status; it was composed merely of "the jail physician and three specialists
in mental and nervous diseases."

In 1909 the New York State Bar Association suggested that a panel of
physicians be formed as a step toward abolishing certain unattractive

¹³⁷ Overholser, "Ten Years of Co-operative Effort," p. 23.

¹³⁸ *Ibid.*, p. 27.

¹³⁹ *Ibid.*, p. 28.

LEGAL ASPECTS OF PSYCHIATRY

581

aspects of expert testimony. The New York Psychiatric Association
suggested the abolition of the hypothetical question. In 1917 the Ameri-
can Institute of Criminal Law and Criminology, which was established in
1910, suggested legislation on the problem of expert testimony, and in
the same year it recommended that joint consultation between the ex-
perts of the "opposite sides" be held—a type of consultation which the
state's attorney rejected in the Leopold-Loeb case.

Various clinics for psychiatric work preliminary to trial or other legal
measures began to be organized. In 1931 the New York City Court of
General Sessions established a psychiatric clinic. This was not the first
such clinic in the country. The oldest is the psychiatric clinic at the Re-
corder's Court of the city of Detroit (founded in 1919-1921). The next
to be established were the Medical Department of the Supreme Bench in
Baltimore (1925) and the Chicago Criminal Court Clinic (1930-1931);
in Chicago the Municipal Court Laboratory had been established several
years before. Among the newest clinics are that of the Cleveland Court,
the Pittsburgh Behavior Clinic, Court Quarter Sessions, and the Medical
Division of the Municipal Court of Philadelphia.¹⁰⁰

These clinics are perhaps the most eloquent and most efficacious ex-
pression of the coöoperation between the law and psychiatry in which
newer and less punitive orientations are gradually being instilled. Yet
it should be remembered that these clinics are mere adjuvants to a funda-
mental criminal law which is not yet reformed. The fundamental change
of the law still awaits its day.

In 1922 an associate justice of the Supreme Court of California urged
... that insanity be no longer treated as a defense to a criminal charge, and that
evidence on that subject be excluded from the jury trying a criminal case; that
after conviction the defendant upon suggestion of insanity, be examined by a
board of alienists with a view to determining whether the defendant should be
committed to the state hospital, or prison, or be released under probationary
supervision to private hospital or to other custody; that the judge be em-
powered to make such supervisory orders from time to time upon the advice of
competent alienists as may be necessary, and that the state retain jurisdiction
over the defendant even after an apparently complete cure for at least as long
as the maximum term of imprisonment for the offense, resuming custody of
the defendant during that period whenever symptoms of a relapse make fur-
ther custody desirable for the protection of the public.¹³⁹

¹⁰⁰ I owe to Dr. Lowell S. Selling verification of the above.

¹⁰¹ Quoted by Weihofen, *op. cit.*, pp. 429-430.

582

GREGORY ZILBOORG

Here we find blended the fundamental psychiatric *curative* idea with the idea of *social security*, which is or ought to be the major goal of the law.

If the various procedural improvements are not accompanied by fundamental changes in our revengeful attitude toward the transgression of the law, they are of course bound to be what might be called negative improvement. But negative improvement should by no means be considered of little value. The history of the so-called Lunacy Commissions in New York are a case in point. In the case of Robert Irwin, who killed three persons in New York City in March, 1937, the Commissioners in Lunacy rendered a report which was a deliberation and exposition of legalistic generalities in the best tradition of 1843, with all the characteristic obscurities and abstractions of this tradition. These Commissioners in Lunacy based their conclusions on hearsay and generalities since the defendant, a paranoid, psychotic individual, refused to be examined by them. In reviewing their report Overholser<sup>128</sup> pointed out their fallacies, the essential unsoundness of the system of "Commissioners in Lunacy," and the scientific tenuousness and political abuse which this system represented. In 1939 the Desmond Bill, abolishing the Commissions in Lunacy, was passed by the New York State Legislature and soon afterward signed by the Governor. This type of negative improvement is of inestimable value.

History still awaits the positive change of the McNaghten rules into sounder psychological principles. In the meantime, as has been pointed out above when I cited an opinion of Justice Cardozo regarding delusions, the legal mind seeks new ways to achieve a conciliation between its newly acquired enlightenment and its older conceptions which have become statutory or sanctified by common law. Naturally, while the lawyer occasionally succeeds in his efforts as far as logic is concerned, he fails in substance. This is what led William A. White to disagree with Professor Edwin R. Keedy, although the latter was most sympathetic to psychiatry and to White and was responsible for a number of valuable suggestions through various committees of the American Institute of Criminal Law and Criminology. When Keedy suggested that the jury is not called upon to determine whether the criminal is sane or insane but "whether the mental element required by law was present," he expressed the situation with considerable accuracy; but the problem of jury trials to determine

128 Am. J. Insanity, XCV (1937-38), pp. 733-736.

LEGAL ASPECTS OF PSYCHIATRY

583

abnormal mental states remains unsolved. When Keedy averred that "Responsibility means accountability for one's actions to some superior power, which in this case is the criminal law. . . . According as the law of one sovereignty differs from another so responsibility varies"—the issue of legal responsibility remained unsolved, and an understanding of the psychology of aggression and revenge on the part of the law, so well described by White, became even more obscured.

The fundamental issue raised one hundred years ago was that the law dealt with psychiatric problems by establishing a series of purely intellectual categories. The law always stressed the intellectual defect which had to be demonstrated in every case of alleged insanity. That is why the concept of moral insanity was so vigorously rejected.

One hundred years later we find that American psychiatry for the most part has followed the path outlined by Isaac Ray's keen and vigorous intuition and is still combating the purely intellectual, conceptual thinking of the law. Under different terms and guises, the concept of moral insanity which Isaac Ray so steadfastly propounded is being reasserted by American psychiatry, by its laying stress on the evaluation of the affective, sociological, and biological aspects of the criminal individual. The curative protection of society is taking precedence in the philosophy and practice of psychiatry in relation to the law, rather than the purely formalistic rearrangement of concepts in a set, procedural manner.

Perhaps Isaac Ray was more than justified when he suggested in his project of a new law that the prosecution should be charged with the task of proving the sanity of the accused, instead of throwing the burden of proving insanity on the defense. One is inclined to suspect that such a law as was suggested by Ray would force the legal profession to learn more about psychopathology than it is wont to do about these "afflictive dispensations of Divine Providence," as William H. Stokes called mental disease when he spoke in Baltimore in 1853 on "A Court of Medical Experts in Cases of Insanity."<sup>129</sup> The purely intellectual approach to mental disease, which would make purely rational functions a test or proof of sanity and criminal responsibility, provokes a reminder which the *Journal's* reviewer gave us some fifty years ago, when he recalled Pope's verse:

> Great wit is unto madness near allied,
> And thin partitions do their bounds divide.

129 *Ibid.*, X (1853-54), 112-122.

588

THE PRESIDENTS

1934-1935

1939-1940

1935-1936

1940-1941

1936-1937

1941-1942

1937-1938

1942-1943

1938-1939

1943-1944

CONTRIBUTORS

HENRY ALDEN BUNKER, M.D., Formerly Assistant Director, New York State Psychiatric Institute. Instructor, New York Psychoanalytic Institute. Associate Editor, *Psychoanalytic Quarterly*.

ALBERT DEUTSCH, Author of *The Mentally Ill in America*. Co-author of *The History of Public Welfare in New York State, 1867 to 1940*.

J. K. HALL, M.D., Director, Westbrook Sanatorium, Richmond, Virginia. President, American Psychiatric Association, 1941-1942.

SAMUEL W. HAMILTON, M.D., Mental Hospital Advisor, Mental Hygiene Division, United States Public Health Service.

CLYDE KLUCKHOHN, PH.D., Associate Professor of Anthropology, Harvard University.

WILLIAM MALAMUD, M.D., C.M., Director of Clinical Psychiatry, Worcester State Hospital. Professor of Clinical Psychiatry, Tufts College Medical School.

DOM THOMAS VERNER MOORE, PH.D., M.D., O.S.B., Professor of Psychology, The Catholic University of America.

WINFRED OVERHOLSER, M.B., M.D., Sc.D., Superintendent, Saint Elizabeths Hospital, Washington, D.C. Professor of Psychiatry, School of Medicine, The George Washington University. Chairman, Committee on Neuropsychiatry, National Research Council.

RICHARD H. SHRYOCK, PH.D., Professor of History and
Lecturer in Medical History, University of Pennsylvania.
Lecturer in Medical History, Woman's Medical College of
Pennsylvania.

HENRY E. SIGERIST, M.D., Professor of the History of
Medicine, The Johns Hopkins University.

EDWARD A. STRECKER, M.D., Late Major, M.C., U.S.A.
Professor of Psychiatry, School of Medicine, University of
Pennsylvania. Consultant in Psychiatry, Bureau of Medicine
and Surgery, U.S.N. Special Consultant to the Secretary of
War, A.A.F. President, American Psychiatric Association,
1943-1944.

JOHN C. WHITEHORN, M.D., Henry Phipps Professor
of Psychiatry, The Johns Hopkins University School of
Medicine.

GREGORY ZILBOORG, M.D., Director of Research, Com-
mittee for the Study of Suicide. Noguchi Lecturer on the
History of Medicine, The Johns Hopkins University, 1935.
Chairman, Committee on the History of Psychiatry, Ameri-
can Psychiatric Association. Instructor, New York Psycho-
analytic Institute.