Of Mad Dogs and Scientists: The Perils of the 'Criminal-Insane'

Chief Judge David L. Bazelon has stood at the meeting point of psychiatry and the criminal law during the past twentyfive years. The hopes and happy promises, the disappointments and recriminations of that uneasy conjunction are vividly refracted in his judicial career. DurhamI is the first large landmark. The explicit intent of that opinion was to permit psychiatrists to explain antisocial conduct in the language of their discipline, unencumbered by competing conceptual constructs drawn, for example, from quasi-religious explanations of "bad behavior." But there was a larger purpose behind this strategy. Durham solicited psychodynamic explanations of criminal conduct because these seemed to offer hopeful directions for a more constructive, humane social response to criminal deviancy. Psychiatrists would offer not only their explanations but, more importantly, their prescriptions for cure in the dramatic liturgy of the criminal trial. The public would be seized by these performances and persuaded to commit the resources needed to meet these prescriptions. The script has not gone that way. For a time, Judge Bazelon's opinions seemed to blame the actors in the drama-the trial courts, attorneys, and most pointedly the psychiatric witnesses-for failing to understand and to communicate intelligibly the best psychodynamic theories about antisocial conduct.2 But the true villain of the piece appears center stage twelve years after Durham in the "right to treatment" case, Rouse v.