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Virginia Law Review

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This article argues that mental illness should no longer be the basis for a special defense of insanity. Instead, mental disorder should be considered in criminal cases only if relevant to other excuse doctrines, such as lack of mens rea, self-defense and duress, as those defenses have been defined under modern subjectively-oriented codes. With the advent of these subjectively defined doctrines (a development which, ironically, took place during the same period that insanity formulations expanded), the insanity defense has outlived its usefulness, normatively and practically. Modern official formulations of the defense are overbroad because, fairly construed, they exculpate the vast majority of people who commit serious crime. The most prominent alternative to the official tests--the irrationality threshold-- is also flawed because it is based on the unprovable assumption that irrational people are less able to act for good reasons. Acquitting only those who lacked mens rea due to mental dysfunction or who acted on delusions that, if true, would sound in self-defense or duress better captures the universe of people who should be excused because of mental illness. This approach would also enhance the image of the criminal justice system, improve treatment of those with mental illness, and reduce the stigma associated with being mentally ill.

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