by Sherry F. Colb
The U.S. Supreme Court recently granted certiorari in Kahler v. Kansas. The case asks whether abolishing the insanity defense violates the Constitution. In my Verdict column this week, I discuss the case and make some arguments in defense of allowing abolition. In this post, I want to discuss a feature of the insanity defense that it arguably shares with animal welfare regulations and customs that purport to protect animals from cruelty.
By now, the phrase "humanely raised" is so deeply ingrained in our culture that one knows to associate it with food rather than with living beings. It is the dozen eggs at the farmers' market or the slab of beef at the Whole Foods deli counter. We hear that the animal-based food we purchase has a background of humaneness behind it, and we feel reassured.
The truth is that no one would use the word "humane" in any other context to describe what happens to the animals that produce and become our food. Even at the highest-welfare farm and the "happiest" slaughterhouse, animals experience loss (as family members are sold away for slaughter), terror, and tremendous physical pain. If those of us who love a dog or a cat thought that our pet might be "humanely raised" or "humanely slaughtered," we would lock them up at home and possibly seek a restraining order. And if someone planned the fate of the luckiest livestock for a human being, we would call in Amnesty International or the Special Victims Unit to intervene. In short, we use the word "humane" differently in the context of animals who become our food from how we use it more generally, where its definition is "marked by compassion, sympathy, or consideration for humans or animals." (Merriam Webster).
Using a word that generally signifies one thing to mean something very different is confusing to us. We have a particular (positive) association with the word "humane," because it generally means that a human or animal was treated with kindness and mercy, but it means something completely different when applied to foods. It can mean nothing at all, because there is little oversight involved in checking that animal corpses truly, as live animals, experienced "humane" treatment, or it can mean that for some portion of the animal's life, though not the part when it was cut short with a bolt gun and a knife, the animal may have suffered less than animals just like her ordinarily suffer.
The term is relative in a way that it usually is not. And many people know this--at least in the backs of their minds--but their emotions still respond to the word "humane" and thus feel virtuous in consuming those animals. People even find comfort and reassurance in the happy cow-and-calf pictures on the container of milk--astonishingly dishonest pictures, given that milk comes from removing baby calves from their moms and taking their breast milk for human use. Showing pictures of involuntary wet nurses grazing with their babies takes a special kind of audacity. Yet even knowing that, the picture makes people feel good about their purchase, and they even believe the propaganda--at least a little.
Another thing that happens when we purchase "humane" animal products is that any uneasiness we might occasionally feel about the slaughter and suffering of living, breathing, feeling beings gets diverted into a critique of the "bad" kind of animal farming: "factory farming." As I discussed here, "factory farming" used to be a phrase that would motivate people to opt out of eating animal foods. Now, by contrast, it motivates people to consume (in addition to their "factory farmed" foods) products from the farmers' market and from Whole Foods, products that they can feel good about, so good--in fact--that their purchase may even cancel out any residual guilt associated with the more plentiful factory-farmed goods in their refrigerator and freezer.
The Insanity Defense
What does any of this have to do with the insanity defense? Do we treat insane people inhumanely? Do we kill them and use them for food? Of course not. But we do have a deception at the center of the insanity defense, a deception comparable to that embedded in "humane" animal products.
The first deception, though not the most significant, is in the notion that "insane" means the same thing as "mentally ill." Some people likely imagine that if someone with a diagnosis of mental illness commits a crime, then they will pay no price for that crime. Because people have this perception, moreover, they resent defendants who do manage to get a not guilty verdict by reason of insanity from a jury, because it seems like they are beating the system somehow. Many people suffer from mental illness and don't commit a crime, so why should such a condition provide an excuse for those who do?
As it turns out, "insanity" does not mean mental illness; it means something far narrower--a disorder that substantially or completely takes away the capacity to distinguish right from wrong or to understand the nature and quality of one's actions. Having a mental illness is not enough to avoid a guilty verdict.
And that brings us to the second deception. Even people who arguably do meet the demanding criteria of the insanity defense do not necessarily succeed in mounting the defense. Juries, perhaps jaded by the perception that people always look for excuses and fail to take responsibility for their actions, tend to convict people who present an insanity defense. This deception is crucial, because even as the public believes that there is an opportunity for insane people to avoid being punished for their actions, the reality is that that opportunity is very limited and leaves many impaired and damaged people out in the cold. We imagine, in other words, a compassionate system that protects the extremely mentally disordered, but we do not have anything resembling that. (An April 2019 Report provides data and analysis for New York, which does not appear to be unusual in how rarely defendants succeed in obtaining not-guilty-by-reason-of-insanity verdicts.)
A third and final deception in the insanity defense context is the notion that people who successfully offer an insanity defense will now receive beneficial treatment, less incarceration, and a more comfortable existence than those convicted of the same crime. In reality, however, people found not guilty by reason of insanity will often spend more time behind bars than they would have spent after a conviction, and the conditions of confinement differ little from those that accompany imprisonment. Once again, we tell ourselves that we are merciful, even to a fault, by exempting the seriously mentally ill from the harsh experiences that we inflict on convicts. We might feel good about this decision and the sacrifice that it would seem to entail on our part. But we feel good about an illusion in that case. People with severe mental disorders serve hard time for their offenses, and they serve it on our watch.
My goal is not to argue for a contrived connection between "humane" animal products and the insanity defense. There are plenty of differences between the two, only starting with the fact that animals are always innocent of anything that could even arguably make someone deserve the suffering that they endure because we keep buying their remains and their secreted "products." To defend the consumption of animal products, the most common impulse is just to cite the fact that they are "only animals," whereas we are "human beings," an answer that is more like pounding on a table than it is like providing a persuasive account of what people do out of longstanding habit, convenience, and social imitation. To defend the conviction and incarceration of the insane, one can plausibly say that all anti-social behavior has a cause and that a system of social control must nonetheless identify those who pose a danger, in the absence of justification, and incapacitate them effectively. The injustice done to animals is accordingly far graver than that which is done to the criminally insane.
Nonetheless, there is injustice in both contexts. Most of us would agree that it is wrong to inflict suffering on animals when there is no need to do so. And most of us would also agree that it is wrong to treat the truly insane as though they were responsible for their behavior. Yet we perpetrate both of these harms, through our purchasing and political choices. We hurt animals every single day, and we treat insane people like evil people deserving of punishment. But we do not want to think about any of that, not for very long. So we have pretenses, and we use words like "humane" and "insane" to describe things that differ dramatically from what we would ordinarily use these words to describe. We soothe ourselves with these distorted words. If we want to really put an end to the injustices that the words facilitate, we will admit the truth. There exists no "humane" meat, dairy, or eggs. And there is no mercy for the "insane" who commit crimes. The label "humanely raised" and the category of "insanity defense" may be as much of an obstacle to actual reform as the primitive wish to keep doing what we have always done and what the neighbors do, as long as we possibly can.