British Medical Journal, 1950, No. 4674, p. 311 (August 5, 1950).
This article is the Memorandum submitted by Professor Henderson to the Royal Commission on Capital Punishment. In his introduction the author refers to the larger problem of 'the sick society in our midst' which calls for the improvement of genetic, social and economic conditions. Punishment should be considered in relation to these problems as well as to the medical factors. The violent methods of punishment have little or no constructive value. Legal and public opinion, however, is apt to adopt a moralistic rather than a medical code and to be sceptical of the findings of the psychiatrist; in consequence, medical opinion should be stated in terms which can be easily understood and should deal with the actual facts. The great difficulties are that the symptoms are so often entirely subjective, and that we cannot, except rarely, point to any one specific causation as in the case of physical illness. The legal outlook is too greatly dominated by the concept of reason and free will, and by lack of appreciation of the fact that conduct is motivated by instinctive drives which operate at a much less conscious level. On the other hand, it may be argued that the medical point of view is too liberal-minded, concerns itself too greatly with the individual. Yet only individualization, the dominant truth of modern medical science, allows a more hopeful prospect in the future. The large army of recidivists is the best answer to the arbitrary-sentence method at present in vogue.
These general statements are then applied to the main groups of mental, nervous and character disorder. In the author's opinion, the plea of mental disorder is submitted too frequently in cases involving a capital charge, really as a plea ad misericordiam. In less serious cases the plea of mental disorder is not submitted often enough, largely because the accused prefers a definite prison sentence to prolonged treatment in a mental hospital. As regards the McNaughten Rules, which are no longer in harmony with medical knowledge, the author suggests that, instead of polishing them up or introducing other rules, they should be dispensed with altogether. Every case should be judged on its individual merits rather than in terms of a formula. A psychiatric examination is advised in every case involving capital punishment. For those persons adjudged as of unsound mind the author advocates care and treatment in a special type of mental hospital independent of a prison régime or, failing this, in a modern psychiatric department within the prison system; more frequent use of parole and transfer to civil hospitals.
The law's refusal to allow Mental Deficiency (except in the most gross cases) to be a defence in bar of trial or sentence is deplored. This should apply to mental deficiency of whatsoever degree, and mentally defective criminals should be cared for under hospital or colony conditions until they can be discharged with safety to the public.
The Psychopathic States are considered the most serious and most controversial medico-legal and social problem. The more serious cases are not sane enough to be at large and not insane enough to be certifiable. The author agrees with the practice of the Scottish courts, which have generally
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accepted the doctrine of limited or modified responsibility in murder cases, and recommends its application to a wider range of cases, e.g. assault, sexual offences, etc. He pleads for an indeterminate sentence until a sense of social responsibility is established, as well as care in a special institution or colony such as has been established in Denmark at Herstedvester (outlined in the Appendix).
With regard to the Psychoneurotics, the author stresses the importance of understanding the unconscious determination of their conduct disorder. While he has never known a pure obsessive-compulsive state lead to a homicidal attack, sexual offences are common. Although unwilling to go so far as to say that all criminal acts must be caused by inner conflicts, he considers that the conflict which produces criminal acts in the case of delinquents is very much the same in type as that which produces neuroses. The reaction is different, depending on the personalitystructure.
In conclusion, the author pleads for increased understanding and co-operation between the legal and medical professions; good psychiatric units where satisfactory examination and observation can be carried out previous to trial, and where suitable cases can have adequate treatment after trial; an efficient after-care organization; a judiciary imbued with a remedial outlook and able to think in terms of illness which may be entirely subjective; modesty on the part of the psychiatrist in relation to his ability to attain cures in the case of so seriously disturbed individuals.
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Rubinstein, L.H. (1951). 'Reflections on Criminal Conduct and its Treatment.'. Int. J. Psycho-Anal., 32:266-267