Origins of the Control Test

Origins of the Control Test

The first American statements of a control inquiry rested on an observation about what a knowledge test leaves out: it has no place for a mind that disease has overpowered rather than clouded. In Commonwealth v. Rogers, Chief Justice Shaw of Massachusetts told juries that once a diseased and unsound mind was proved, the question became whether the disease was so severe that, for the time being, it overwhelmed reason, conscience, and judgment, and whether the accused acted from an irresistible and uncontrollable impulse.¹ If so, the court said, the act was "the involuntary act of the body, without the concurrence of a mind directing it."² The reasoning is the same reasoning that supports the knowledge tests, because blame attaches to a choice and a disease can remove the capacity to choose while leaving the capacity to understand untouched. A rule that measures responsibility by cognition alone treats the mind as if it held no other faculty, and the instruction in Rogers supplies the missing one by recognizing that a will can be overwhelmed.

In 1846 the Supreme Court of Pennsylvania took up the same question in Commonwealth v. Mosler and held, through Chief Justice Gibson, that an act committed as a result of an irresistible impulse did not subject the doer to criminal liability.³ Gibson required that the insanity, whether general or partial, be great enough to have controlled the will and taken from its subject the freedom of moral action. He described a moral or homicidal insanity in which the mind sees the consequences of an act but, under an unseen coercion, cannot avoid them.⁴ The same opinion set the limit in the same breath, calling the doctrine dangerous in its relations and saying it could be recognized "only in the clearest cases."⁵

The demand for clear proof follows from what the claim depends on. A claim that the defendant could not stop rests on an internal state that nobody but the defendant can observe directly, so the person who simply did not stop has every reason to describe the same experience. Gibson's remedy was to look outside the defendant's own account: the condition ought to be shown to have been habitual, or at least to have appeared in more than one instance, or else its existence at the time of the act had to be established by clear proof from the surrounding circumstances.⁶ He added a worry about scale, warning that if juries allowed the claim as a general motive, its recognition would destroy social order as well as personal safety.⁷ That insistence on a track record or on contemporaneous circumstances is the earliest form of a concern that runs through the whole subject, which is how to separate a disease-driven loss of control from an ordinary failure of self-restraint.

Gibson's worry had an English counterpart. Medical writing before M'Naghten had stressed that a person might know what the act was and that it was wrong and still be unable to control conduct, and in 1840 an English judge told the jury in the trial of Oxford, charged with treason for firing a pistol at Queen Victoria, that if "some controlling disease was, in truth, the acting power within him which he could not resist, then he will not be responsible."⁸ The judges who answered the questions in M'Naghten did not mention that instruction, probably because their answers were confined to questions arising from a defendant who acted on a delusion. Afterward English trial judges instructed juries only in terms of right and wrong, and an English decision in 1863 rejected irresistible impulse as "a most dangerous doctrine."⁹ From its first appearance, then, the dispute concerned whether a control defense should exist at all, and that is the dispute the later parts of this chapter inherit.

In the United States a lack-of-control type of test can be traced to 1834, and the phrase irresistible impulse apparently first appeared in 1844, although the context left it uncertain whether a test separate from M'Naghten was being adopted. A few jurisdictions accepted the test in the 1860s and 1870s.¹⁰ The idea reached federal law through Davis v. United States in 1897, where the Supreme Court's definition of insanity, offered as dictum on the case's second appearance, reached beyond knowledge. It described a person as insane who could not distinguish right from wrong, or who was unconscious of the nature of the act, or who, though conscious of it and aware that it was wrong, had a will, meaning the governing power of the mind, that was otherwise than voluntarily so completely destroyed that the actions were beyond control.¹¹ The control clause appears there as one alternative beside the knowledge clauses, which already shows the supplement structure. Its insistence on complete destruction of the will set a high bar, and later sections show why critics attacked that feature.

The District of Columbia appellate court carried the idea into the modern rule in Smith v. United States. It called the right-wrong rule harsh and said that rule was no longer followed by the federal courts or by most state courts.¹² On the court's account, the accused must be capable of distinguishing right from wrong and must also not have been impelled by an irresistible impulse, so that acquittal follows when diseased reasoning powers deprived the accused of the will power to resist the insane impulse to commit the deed, though knowing it to be wrong.¹³ Smith remained the District's reference point for the control inquiry. In Fisher v. United States the Supreme Court described a District defendant as sane in the usual legal sense, since he knew right from wrong and, citing Smith, his will was capable of controlling his impulses, and it noted that the jury had received the usual instructions on insanity and irresistible impulse.¹⁴ That description shows the two questions being asked separately, knowledge under M'Naghten and control under Smith.

Both Davis and Smith present the control inquiry as an addition to the knowledge inquiry. The common error is to read the control test as a replacement for the right-wrong inquiry. The jurisdictions that adopted it call for a verdict of not guilty by reason of insanity when a mental disease kept the defendant from controlling conduct, even if the defendant knew what the act was and that it was wrong, and the defendant need not satisfy both tests.¹⁵ By the middle of the twentieth century many states had added some version of the rule, on the premise that some mental diseases curtail volition while cognition remains unimpaired, and the reform was meant to widen the insanity defense.¹⁶ The Supreme Court has described the purpose the same way: states that adopted the volitional test understood it to expand the defense beyond M'Naghten.¹⁷ The adoption was never universal, however, since most jurisdictions that kept M'Naghten did not also add a control test.¹⁸

The leading state formulation, Parsons v. State, decided in Alabama in 1887, shows how the supplement was built into the jury's task.

The sequence shows why the control test works as an addition. The third step arises only when the defendant knew right from wrong, because a defendant who lacked that knowledge is excused at the second step and never needs the control question. Parsons also attached a strict causal condition, requiring the crime to be the product of the disease solely, and later sections return to how much of that rigor survives. In practice, courts have generally stated the rule as an inability to resist the wrong or to control one's acts, and the phrase irresistible impulse is seldom used, so the label suggests a narrower rule than courts apply.²⁰

The doctrine reached this form against steady resistance, which helps explain why professional opinion about it has never been stable. It was received favorably when it was introduced, fell strongly out of favor for many years, and later showed signs of swinging back toward the view that refusing any control defense fails to give full recognition to the concept of mens rea.²¹ The question whether the Constitution has anything to say about that dispute, and the criticisms that produced broader tests, come later in this chapter.