Perhaps the most difficult position in which a psychiatrist may find himself is when he is consulted on the question of criminal responsibility. Here the difficulty lies not so much in the nature of the question as in the difference between the current legal and the scientific conceptions of responsibility.
The current legal cenception is based on the metaphysical theory of freedom of the will; the individual must exercise his will under the guidance of ethical principles; he is responsible for his acts unless, owing to immaturity or mental disease, he is incapable of distinguishing right from wrong and is thus bereft of proper guidance; when no such incapacity can be shown he must undergo punishment in proportion to the gravity of his crime; this punishment or retribution, which is nothing but a systemati-zation of the original impulse of revenge, is now most frequently justified as a deterrent measure; by instilling a fear of similar punishment, it is supposed, society protects itself against repetitions of the crime; under the influence of this fear responsible persons, i.e., those capable of distinguishing right from wrong, will refrain from doing wrong.
The psychiatrist, when consulted in a criminal case, is not asked to state in a general way whether or not in his opinion the accused is insane, but whether he is insane in the special legal sense with reference to criminal responsibility, i.e., incapable of distinguishing right from wrong.
The scientific conception of responsibility is, of course, very different; the metaphysical theory of freedom of the will has no place in science; the phenomena of the will, like other natural phenomena, are subject to natural laws and are determined by antecedents, such as heredity, education, various environmental influences, and events immediately preceding a given act under consideration, that is to say, factors for the most part beyond the control of the individual; responsibility, therefore, in the sense of liability to profitless suffering in retribution for wrongdoing, does not exist scientifically in any case, sane or insane.
On the other hand, everybody, sane or insane, is responsible in the sense of being liable to forfeit his liberty, property, or the results of his labor when necessary for the protection of the rights of others or for the restoration of damage caused by him.
It is true that the tendency of modern times is to eliminate as far as possible the element of retribution in the treatment of crime; yet the object of a court proceeding in a criminal case is to-day still the determination of the degree of guilt of the accused, i.e., of the amount of punishment to which he should be sentenced. As long as such is the case, it seems to us, psychiatrists cannot consistently take part in the proceeding. They can assist only in a scientific investigation of a case of crime for the purpose of determining its complex of causes, as far as it may be possible to do so, and of thus gaining guidance for measures of prevention, such as temporary or permanent segregation, etc.
The object of the court proceeding, from such a point of view, should be to determine whether or not the accased has committed the crime as alleged and, if so, the amount of damage as well as it can be estimated in terms of money value and the extent to which it is possible for the damage to be made good either by attaching the property of the author of the crime or by a judgment against the products of his labor.
The scientific attitude in relation to the question of criminal responsibility would eliminate the incentives for the troublesome plea of insanity in criminal cases, on the one hand, by ignoring the question of guilt and, on the other hand, by enforcing a responsibility for damage in all cases, sane or insane.