The study of man from the physiologic standpoint has an undoubted tendency to make him, in the eyes of his investigator, a creature of forces beyond its control. Man in this aspect ceases to be a free agent in the eyes of the student. . . . It will hardly be denied that the tendency of psycho-physical study of man must be towards a denial of spirit. Law, on the other hand, stands pre-eminently for the freedom of the will. Without this as a foundation-stone juridic science has no existence, for the very test of juridic responsibility is man’s power of choice. To this the juridic philosopher brings the sentiment of humanity, the teachings of metaphysics and the experience of history, which are repugnant to the physical measurement of the soul; he contends that after you have taken man’s brains to pieces you have not yet found his mind; that molecular interaction may be demonstrated as the physical counterpart of thought, but it is no thought.1
Gino Speranza, a little-known lawyer from the state of New York, was ahead of his time when, in 1901, he started advocating for an alliance between the behavioral sciences of his day and the criminal law. His hope was that by joining forces, forensic psychiatrists, judges, and attorneys could reach a fuller understanding of the human mind and offer a solution to the problem of criminal behavior that was concerning American citizens. At the time of his writing, legal professionals in the United States were gradually recognizing the breakthroughs made in the behavioral sciences and were hoping that their principles and insights “would lead to the rehabilitation of those criminals who were not biologically, or otherwise, beyond salvation.”2 However, legal commentators were unwilling to accept the fundamental premise of the new “rehabilitative penology,” namely, that all behavior has an organic cause and that humans, especially if afflicted by a mental health condition, are not responsible for their conduct. The cultural traditions of common law lawyers prevented them from embracing the deterministic assumptions that informed much scientific writing in fin de siècle America, hindering the full assimilation of psychiatric principles into legal doctrines of criminal responsibility.
In this book I explore how the rise of the new behavioral sciences embraced by Speranza in 1901 shaped American courts’ assessments of defendants’ mental health and criminal responsibility over the twentieth century. During this period, research into the pathological roots of criminal behavior, along with legal discussions about the relevance of such inquiries for courts’ evaluations of offenders’ moral blameworthiness, underwent a series of paradigmatic shifts that warrant close scholarly attention. New psychiatric notions of the mind and its readability, legal doctrines of insanity and diminished culpability, and cultural stereotypes about race and gender shaped the ways in which legal professionals, mental health experts, and lay witnesses approached mental disability evidence, especially in cases carrying the death penalty. Using Texas as a case study, I examine how these medical, legal, and cultural trends informed psycho-legal debates in state criminal courts, while shedding light on the ways in which experts and lay actors’ interpretations of “pathological” mental states influenced trial verdicts in capital cases. I show that, despite mounting pressures from advocates of the “new” rehabilitative penology, Texas courts maintained a punitive approach toward defendants allegedly affected by severe mental disabilities, while allowing for moralized views about personalities, habits, and lifestyle to influence psycho-legal assessments, in potentially prejudicial ways.
Texas has historically played a central role in the American death penalty debate, both for its high execution rates and for its punitive approach to mentally disabled capital defendants. Recent reports suggest that the state has executed about 30 individuals with long histories of paranoid schizophrenia and other severe mental illnesses since resuming executions in 1982, and that 15–20% of Texas’s death row inmates receive ongoing psychiatric treatment.3 Similarly, current estimates show that the Texas Court of Criminal Appeals (TCCA) has overturned at least 19 death sentences imposed on individuals affected by intellectual disabilities since the U.S. Supreme Court ruled in Atkins v. Virginia that the execution of such individuals was unconstitutional.4 These numbers are especially concerning if one considers that Texas has consistently ranked first for number of death sentences and executions in the modern era of capital punishment, taking 573 prisoners to the death chamber as of 2022.5
Forensic psychiatrists and legal scholars argue that the reason for Texas’s punitive approach to mentally ill defendants is that the state’s courts tend to rely on outdated clinical criteria and stereotypes without scientific foundation in their mental incapacity evaluations. For example, scholars have taken issue with the state’s reliance on a modified version of the English M’Naghten rules, a narrow test of legal insanity that requires defendants seeking criminal exculpation to prove that, at the time of the charged offense, they did not know that their conduct was wrong because of a mental disease or defect.6 According to critics, although the “right and wrong” test is generally problematic because of its exclusive focus on the defendant’s cognitive capacities,7 Texas’s version of the rules is even more troubling because it limits the legal protection to those who, at the time of the alleged offense, did not understand that their act was “legally” rather than just “morally” wrong—a significantly higher threshold.8
Scholars have similarly criticized Texas’s capital sentencing statute of 1976 for asking jurors to base their sentencing decision on an assessment of the defendant’s future dangerousness, while failing to provide a procedural mechanism that would allow them to give effect to the mitigating evidence presented by the defense.9 As argued by the U.S. Supreme Court in Penry v. Lynaugh, this sentencing structure forces jurors to ask whether a defendant’s mental health problems increases his or her likelihood to engage in future violent conduct, rather than whether it should prompt a more compassionate legal response based on a consideration of the defendant’s medical history.10 Given people’s tendency to falsely perceive the mentally ill as more violent and unpredictable and therefore more dangerous than the healthy population, Texas’s capital sentencing scheme has turned mental health evidence into a “two-edged sword” that increases rather than decreases a defendant’s likelihood to receive a death sentence.11 Although the Texas legislature amended its capital sentencing scheme to include a special mitigation instruction in 1991,12 until the early 2000s Texas courts continued to either deny a defendant’s right to such instruction or allow jurors to consider the defendant’s mitigating evidence as an aggravating factor at sentencing.13
Psychiatrists and criminal lawyers have importantly highlighted the contradictions and pitfalls of current insanity doctrines and capital sentencing frameworks, both in Texas and elsewhere. Taking a normative approach to the issue, they have advocated different interpretations or changes to the M’Naghten rules,14 argued for reforms to states’ capital sentencing laws,15 and proposed an extension of the constitutional exemption from capital punishment to severely mentally ill defendants.16 Although these normative approaches shed light on the ethical, constitutional, and medical issues involved in the psycho-legal dispute, they are problematic insofar as they take for granted the underlying assumptions on which dominant notions of mental illness and criminal responsibility are based. In Judging Insanity, Punishing Difference I challenge this general trend and provide an original viewpoint from which to analyze the mental incapacity debate. Rather than taking a normative position in the discussion, in line with existing literature, I seek to deconstruct the wider processes that allowed such normativity to establish itself in the first place. Specifically, starting from a detailed sociological and historical analysis of American psycho-legal theory and Texas courtroom interactions, I strive to identify the deeper dynamics that underpinned the formation of specific understandings of mental illness and criminal responsibility over the twentieth century, and the ways in which these understandings in turn influenced the process of legal adjudication in capital cases.
Inspired by the postmodern challenge to Western Enlightenment philosophy,17 I argue that rather than taking the dominant psycho-legal framework as the ultimate authority on issues of subjectivity, agency, and criminal accountability, one should see it as a subjective and partial interpretation of reality, which has acquired meaning and acceptance as it resonated with specific cultural codes shared by particular social groups.18 To advance this claim, I embark on a fascinating historical journey through the archives of American forensic psychiatric publications, courtroom documents related to the trials of male capital defendants who raised mental incapacity claims (i.e., insanity and diminished responsibility), and social and cultural histories of forensic psychiatry and psychology and U.S. penal practices. The aim of the historical investigation is to provide a counternarrative to the one that can be elicited from the exclusive reading of trial court records and appellate opinions, which draw a decontextualized picture of the lives of capital defendants and of the psycho-legal paradigms used to interpret their mental state for the establishment of criminal liability. The purpose of this counternarrative is to reveal the influences of political interests and cultural values on the ways in which defendants’ mental health conditions were diagnosed, classified, and represented in twentieth-century death penalty trials, and to highlight the crucial role played by linguistic exchanges in constructing different interpretations of such conditions, regardless of their empirical reality.
In Judging Insanity, Punishing Difference I advance two central arguments. First, I show that even though the twentieth century has witnessed dramatic psychiatric and legal developments aimed at enhancing courts’ understanding of defendants’ mental health conditions and criminal behaviors, in Texas proceedings these changes have not led to more “scientific” assessments of defendants’ mental health or to more “objective” evaluations of their criminal responsibility. On the contrary, I propose that despite their claims to scientific objectivity and legal neutrality, over the course of the twentieth century American psycho-legal theorists and Texas expert witnesses, defense attorneys, prosecutors, and appellate courts have consistently provided morally charged descriptions of mentally ill offenders that reveal a far from dispassionate approach. Second, I show that, although progressive medico-legal scholars have tried to advance more compassionate legal responses tailored to offenders’ individual characteristics, in Texas courts these attempts have been consistently frustrated by a set of practical, tactical, and cultural obstacles that undermined the exculpatory or mitigating potential of the mental health evidence presented by the defense. In this section I summarize some of these obstacles and show that, rather than encouraging sympathetic legal responses, Texas trial actors helped to overshadow the human suffering that lay behind the criminal offenses, to increase the perception of dangerousness historically attached to the mentally ill, and to stigmatize the different and disenfranchised through stereotypical descriptions and diagnostic labels.
Let us begin with the practical level. As we will see, over the twentieth century defendants trying to advance insanity defenses and diminished culpability arguments in Texas courts faced two fundamental challenges. The first one concerns psychiatrists’ epistemological and methodological limitations when dealing with individual cases. As the cases analyzed in this book will show, psychiatrists testifying in Texas proceedings often lacked the medical knowledge and/or professional skills to conduct thorough mental health evaluations and present evidence that went beyond superficial descriptions of symptoms and diagnostic labels. This descriptive approach significantly undermined their ability to advance convincing insanity and diminished culpability claims that required, or at least would have benefited from, an explanation of the mechanisms connecting defendants’ mental “impairments” with their criminal conduct.19 Moreover, even when defense experts tried to trace the complex mechanisms linking defendants’ criminal acts to biological “defects” or childhood “traumas,” their arguments tended to advance a defense of “irresistible impulse” rather than of “cognitive deficit,” falling short of the rationalistic criteria established by Texas’s “right and wrong” test.20
1. Speranza (1901), 125–26.
2. Green (1995), 1922.
3. Texas Coalition Against the Death Penalty (2016). These numbers align, and in some respects exceed, broader national trends. Some estimates suggest that retentionist states have collectively executed more than 60 people with severe mental disabilities since the U.S. Supreme Court reinstated the death penalty in 1976, and that between 10% and 70% of current death row prisoners suffer from a severe mental disability. See Perlin (2013), 1.
4. Atkins v. Virginia, 536 U.S. 304 (2002).
5. Death Penalty Information Center (2022a).
6. M’Naghten’s Case, House of Lords, 8 Eng. Rep. 718 (1843); Tex. Penal Code Ann., §8.01 (West 1984).
7. Ray (1962), 42–43; Cardozo (1931), 70, 106, 108; Zilboorg (1943), 273; Gowers (1953), 102; De Grazia (1954), 341; Douglas (1955); Glueck (1962), 46; Brennan (1963); Hermann and Sor (1983), 512.
8. See Shannon (2006), 73.
9. As detailed in Chapter 6, Texas’s capital sentencing statute of 1976 required jurors to answer two “special issue” questions at the end of the punishment stage of the proceedings: (1) “whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result” and (2) “whether there [was] a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Tex. Code Crim. Proc. Ann., art. 37.071(b) (West 1974). If jurors unanimously answered yes to both special issue questions, they were to impose a death sentence (Tex. Code Crim. Proc. Ann., art. 37.071(e) (West 1974)). The U.S. Supreme Court upheld Texas’s capital sentencing statute in Jurek v. Texas, 428 U.S. 262 (1976).
10. Penry v. Lynaugh, 492 U.S. 302, 304 (1989).
11. Penry v. Lynaugh, at 322–24. See Dix (1976), 1353–55, 1365; Vartkessian (2011); and Vartkessian et al. (2017), 18–19.
12. Tex. Code Crim. Proc. Ann., art. 37.01(b)1–2 (West 1991).
13. See Chapter 5, Section “The Conservative Years and the American Death Penalty.”
14. Douglas (1955), 485–95; Hermann and Sor (1983), 499–508; Glueck (1928). For Texas, see Shannon (2006).
15. Vartkessian (2020).
16. Winick (2009); Entzeroth (2011); Slobogin (2003); Ghoshray (2006); Blume and Johnson (2003); Izutsu (2004); Snodgrass and Justice (2007), 81; Bryant (2008); Giardino (2009).
17. See, e.g., Derrida (1973; 1993), Baudrillard and Levin (1981), Foucault (1978; 1980; 1988), and Lyotard (1984).
18. See Valverde (2009), 1–27.
19. See Chapter 1, Section “Diagnosing Insanity in Texas Criminal Courts.”
20. See Chapter 3, Section “Psychoanalysis, the Insanity Defense, and Texas Death Penalty Trials.”