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by Alec Buchanan
Jessica Kingsley, 2000
Review by Jerome Young on Sep 8th 2002

Psychiatric Aspects of Justification, Excuse and Mitigation in Anglo-American Criminal Law

Buchanan’s Psychiatric Aspects of Justification, Excuse and Mitigation is a scholarly work that tackles a broad subject but does so with brevity and flair.  Buchanan aims to critically assess the means Anglo-American law provides for dealing with criminal acts in which the perpetrator suffers from a mental disorder and is, therefore, not blamed or not punished as severely.  Specifically, he examines the ways psychiatric factors are used in the courts to excuse, justify, or mitigate against unlawful acts.  Because the book is short, and because the subject matter is wide, it is quite dense.  Yet, he writes with such clarity and concision that it is an eminently readable book.  Buchanan addresses his subject through a critical, i.e. philosophical, perspective and draws on a wealth of literature as well as precedent setting legal cases to argue that the current legal provisions need revision.  Even though Buchanan’s book is argumentative, it is not dogmatic—in fact, his suggestions seem quite sensible. 

He begins Chapter One (entitled “Preliminaries”) by addressing the issue of free will and determinism in the law.  He concludes that free will is a necessary starting point in the law because without it the concept of responsibility would make no sense.  In the remainder of the book he systematically examines the principles that led to the development of special court arrangements (i.e. legal and medical devices) for mentally disordered individuals who commit crimes because in these instance individuals are not responsible for what they do.  The general question he addresses is: Why do some people benefit, and others do not, from these legal and medical devices? 

Chapters Two and Three focus on explaining the terms justification, excuse and mitigation.  Buchanan gives definitions, both in terms of the law and in terms of common usage, and attempts to clarify conceptually the significance of the terms.  He provides copious references to the literature, psychiatric and philosophic, as well as a plethora of legal cases that served to set precedents in this area of Anglo-American law.  To explicate the term “justification”, Buchanan examines works by jurisprudential theorists and particular judgments made by judges in legal cases.  After a careful analysis, he concluded that there was an inconsistency between jurisprudential theory and the everyday practice of judges.  In examining the term “excuse”, he looked critically at several different philosophical theories, those advocated by Bentham, Kant, and Hume, as a way to show the varied approaches one can use to excuse in the criminal justice system.  With mitigation, Buchanan looked at the general factors that can influence sentencing, and specifically examined the issues of provocation and diminished responsibility.  In all instances, importantly, he backed up his analysis and criticisms with references to legal cases.  For this reason, his work is informed and, on the whole, even balanced.  

Chapter Four addresses the question: Can mental states excuse?  He proceeds to examine how psychological conditions can affect mental processes because “we excuse on the basis of internal factors.”  He was primarily concerned with how these conditions affect capacity, opportunity, and the soundness of the agent’s character because if these conditions are to exculpate a person, they must impair that person’s ability to make a choice.  Some of the general themes he examined are consciousness, emotions, impulsiveness, thought, and belief.  Buchanan’s analysis drew extensively on psychiatric sources and he discussed many mental disorders, such as dissociative states, personality disorders, depression, schizophrenia, and OCD, that may affect a person’s ability to make a choice. 

Chapter Five looks at how Anglo-American law has traditionally excused certain acts deemed to be the result of a person’s disordered mental state.  He looked at the insanity defense, irresistible impulse, the product test, and automatism.  He spent a considerable amount of time discussing the nature of voluntary and involuntary acts since this is really the crux of whether a person can be excused or not.  Chapter Six critically assessed these provisions and looked at the drawbacks.  He argued that the current laws do not adequately account for all the types of excuses that different mentally disordered individuals may offer in a courtroom setting.  Finally, in Chapter Seven, he considered alternatives to the current provisions and examined the possibility of doing away with the insanity defense (what he calls the “abolitionist” position), looked at the proposals of the Butler Committee, and then considered the nature of wanting, a theory derived from the philosophical works of H.G. Frankfurt.  His suggestions are sensible and, as would be expected from such a consummate scholar, he presented persuasive reasons to back up his position.

Buchanan’s critique of the legal provisions for mentally disordered individuals drew on many fine resources—philosophical, jurisprudential, legal, and psychological and psychiatric—and I found myself going back and forth in the book checking references constantly.  The book is a fine example of good research and philosophical even-handedness.  It provides copious references to important legal cases as well as other works relevant to the conceptualization of the current provisions concerning the psychiatrically disordered.  For this reason, his work is a useful resource for those unfamiliar with the legal and philosophical bases for the legal provisions in the Anglo-American tradition.  But more than that, his work is a provocative assessment of the current provisions governing the distribution of punishment for disordered individuals.  Buchanan’s book would be of interest to anyone who would like to know about the origins of Anglo-American juridical processes concerning psychiatric matters and would be of interest to those who are especially interested in reading a critique of these laws.  It is a finely structured work, well articulated, and provocative.  I have only the highest of praise for his accomplishment.  Anyone interested in learning about this profoundly important topic would find this book a worthy place to begin.

 

© 2001 Jerome Young

 

Jerome Young is a foreign lecturer at Keio University SFC (Kanagawa, Japan) and a post-graduate student in the Philosophy of Mental Health program at the University of Warwick (England).