Supervillains and the Insanity Defense

The fact that it is possible to defeat a criminal charge by pleading insanity, even temporary insanity, is a permanent fixture of American crime storytelling, and comic books are no exception. The Joker, the Riddler, Poison Ivy, Two-Face, all have spent time in the Elizabeth Arkham Asylum for the Criminally Insane.

But is that really how it works? Actually… no. The insanity defense is fairly well-defined, and depending on the jurisdiction it seems like that a lot of supervillains would not actually count as “insane” in a way which would prevent their convictions.

Note that what we are talking about here is only whether a person can avoid conviction by virtue of insanity, not whether they are competent to stand trial. That requires a different analysis and one for another time.

I. Tests for Insanity

When it comes right down to it, why is insanity a defense to a crime at all? If one person kills another, should it matter that the killer is insane? The victim is just as dead either way, yes?

The reason insanity matters is because crimes are composed of “elements,” i.e. things the prosecution must prove beyond a reasonable doubt, and almost every crime consists of an act combined with a certain mental state. So the killing of another is homicide of some sort, and the difference between murder and negligent homicide is entirely a matter of the mental state of the killer. If the killing was done on purpose, it’s murder, but if it was accidental, it isn’t.

Then question then arises, “What do we do with crazy people?” Ascertaining the mental state of another is always a dicey thing to try–even if it is the point of a liberal education–and ascertaining the mental state of a person whose mental state is… um… “highly eccentric,” shall we say?… is even harder than usual.

Insanity and mental disturbances have been known to human society since ancient times, but in 1843, the English House of Lords–the English court of last resort at the time–handed down what have become known as the M’Naghten Rules. The M’Naghten test (or something like it) is still what many American courts use to decide whether a given defendant is insane or not.  The insanity defense widened in its potential scope during the first half of the twentieth century, as psychology and psychiatry came into their own as disciplines, but the attempted assassination of President Ronald Reagan by a crazy guy prompted Congress to tighten things up, largely restoring the status quo from the late nineteenth century, at least in the federal courts.  Many states followed the federal example.

A. The M’Naghten test

The core of the test is to determine whether “the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”

In other words, if a defendant can prove that as a result of some mental condition either 1) he didn’t know what he was doing, or 2) he didn’t know what he was doing was wrong, then he should be found not guilty by reason of insanity.

i. Nature and Quality of the Act

The “nature and quality” part of the test asks whether the defendant actually knew what was going on. The classic example is cutting a woman’s throat under the delusion that it was a loaf of bread. If a person truly were suffering from such a delusion (not an easy thing to prove!), then no conviction will lie, because there is no intent to kill, and not even negligence, because a reasonable person exercising due care will not have any qualms about slicing himself some toast.

ii. Knowledge of the Legal/Moral Nature of the Act

Likewise, if a person simply lacks the capacity to string together actions and consequences, there are procedural problems with holding them accountable for their actions. The mental state of children, discussed earlier, is a useful analog. Just like very young children are not held responsible for the acts they commit because they simply cannot understand the implications of what they do, a mentally-deficient adult might be found not guilty for the same reasons.

iii. Defect of Reason or Disease of the Mind

Note that either prong of the test, if proved, will result in a “not guilty” verdict, but both of the prongs require that the defendant be operating under a “disease of the mind” or a “defect of reason.” Being drunk won’t cut it, as the courts generally impute knowledge to voluntarily intoxicated people so as to avoid drunkenness becoming a complete defense to crimes. But similarly, simply being mistaken about what it was you were doing will not cut it either.

Also note that while a clinical diagnosis can certainly help here, whether or not the defendant has been diagnosed as mentally disturbed is ultimately irrelevant. A defendant with no psychiatric history, if he can make out either prong of the test, can be found not guilty, and a defendant with a schizophrenia diagnosis can be found convicted.

B. Other Tests

Two other important tests for insanity are the irresistible impulse test and the Model Penal Code’s substantial capacity test. In short, the irresistible impulse test excuses a defendant acting under an irresistible impulse, and the substantial capacity test excuses a defendant if “as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.”

The irresistible impulse test has been rejected by most jurisdictions, often vigorously.  As the Supreme Court of Pennsylvania put it: “Moreover, the ‘defense’ offered in this case is simply an attempt to once again foist the ‘irresistible impulse’ concept upon this Court under different nomenclature, an attempt which we have consistently rejected and will continue to resist.”  Commonwealth v. Cain, 503 A.2d 959 (Sup. Ct. Pa. 1986).  However, it is available in some jurisdictions, such as Virginia. “The irresistible impulse defense is available where the accused’s mind has become so impaired by disease that he is totally deprived of the mental power to control or restrain his act.”  Morgan v. Commonwealth, 646 S.E.2d 899, 902 (Ct. App. Va. 2007).  It is possible that many comic book supervillains could be excused by the irresistible impulse test if it were available in Gotham, since many supervillains seem to labor under an irresistible compulsion to commit crimes, often in a specific way.

The substantial capacity test has been adopted by a few jurisdictions, including Illinois, Massachusetts, and Rhode Island.  It, too, is broader than the M’Naghten rule, and it might excuse supervillains where M’Naghten does not.

II. “Criminally Insane” Supervillains

Since we don’t know what test Gotham uses for insanity, we will focus on the rule that a majority of American jurisdictions use, the M’Naghten test. Under the M’Naghten test, a lot of so-called “criminally insane” supervillains are not actually insane, or at least not insane in such a way as would render them not guilty.

Take the Joker for example in addition to denying that he is crazy, the Joker does not actually display any likelihood, in most continuities anyway, of being eligible for an insanity defense. He always knows exactly what he is doing, and always knows that what he is doing is illegal. That, right there, means that he cannot successfully assert an insanity defense.

The same can likely be said of almost all the characters in Arkham Asylum. Very few if any of them are under the illusion that blowing up buildings is anything other than blowing up buildings. The Riddler commits crimes, knowing they are crimes, as a demonstration of his alleged intellectual superiority. Black Mask is motivated by revenge. So, arguably, is Poison Ivy (at least in certain continuities). All of them know exactly what they’re doing, and most of them display extraordinary planning and strategic capabilities. They certainly are capable of forming the requisite mental state to be guilty of a crime.

But there are at least two characters who can probably never be found guilty of a crime under the M’Naghten test: the Hulk and Doomsday.

The Hulk is also probably mostly immune from criminal prosecution, as in some continuities when Bruce Banner goes into Hulk mode, he loses all ability to reason, plan, etc. In those stories where the Hulk is a mindless ravaging beast, holding him criminally liable for his rampages will prove difficult. Of course, in those continuities where Banner remains more-or-less in control during his Hulk phases, the insanity defense should be unavailable, or at least a lot harder to prove.

Doomsday, on the other hand, is an almost elemental destroyer, possessing neither language nor reason, bent only on destruction. Exactly how that’s supposed to work is left as an exercise for the imagination, but it’s pretty clear from the various continuities that Doomsday isn’t really capable of forming any mental state, and not having a mind to speak of would certainly count as a “defect”.

Then again, that would go for any of those villains who lack a sentient mind of some sort. Animals, machines, and other non-sentients would never be tried in open court. It does not require a court order for the dogcatcher to put down a rabid dog. Neither would it require a court order for a truly mindless enemy to be “punished” or otherwise dealt with.

III. Conclusion

While the insanity defense is regular feature in fiction, especially in comic books, many of the characters who are found not guilty by reason of insanity would probably be found guilty if tried in a real court. The characters who would probably be eligible for an insanity defense tend be more like real-world defendants who successfully employ the insanity defense, i.e. people who are really, truly, mentally deficient.

Of course, many supervillains do suffer from mental illnesses of some sort, even if they aren’t sufficient to make out a defense of insanity, so housing them in Arkham isn’t necessarily inaccurate or inappropriate, but neither is it evidence that the inmates there were found not guilty by reason of insanity.  Many jurisdictions recognize a verdict of “guilty but mentally ill,” and this may explain why so many apparently legally sane supervillains end up in Arkham.

35 responses to “Supervillains and the Insanity Defense

  1. It’s funny that this post appears today…I was just reading a comic earlier today with a situation similar to Bruce Banner’s (an experiment makes the lead into a werewolf–against her knowledge and without her consent–and she periodically flips out and loses all sense of human reason, even killing somebody once)

    I was wondering how this would be handled by the legal system (the comic isn’t that far along yet) If I’m reading your post correctly, she could probably mount an insanity defense, as I suspected. What I don’t know, and don’t see in the post, is what the legal system can do going forward, both in the hulk and Paradigm Shift cases. Can they be detained? My understanding–from movies, so obviously I have to take this with a grain of salt–is that somebody who’s insane can be locked up until they’re determined to be sane. Bruce Banner and Kate are perfectly sane when not suffering an attack, but once they do so, they’re menaces to those around them. Can they be indefinitely confined, even while in command of themselves?

    • The question is irrelevant. There is NO way the Hulk can be indefinitely confined. And if the comics offer any evidence, there is no way that Bruce Banner can be prevented from eventually Hulking out. I wouldn’t even try — I’d send him somewhere peaceful with a small population, and let him lie on the beach sipping Margaritas.

      Of course, the rest will be wanting one too.

    • It’s not so much that the mentally ill can be locked up until they are sane, it’s that people who are a danger to themselves or others because of their mental illness can be involuntarily committed for treatment and protection. This could apply to someone like Bruce Banner if he can’t control himself when he is The Hulk.

      That said, as Ellen points out, there may be real practical problems with that in Bruce Banner’s case. But not necessarily in other cases.

    • My first thought about werewolfs is that if you know that you are one, and thusly that you are going to change, couldn’t you be held responsible, at least for negligent homicide, if you don’t take the necessary precautions to ensure that you don’t get anywhere near anyone?

      • I’m not sure. There have been cases involving, for example, people with epilepsy who had a seizure while driving and were found guilty of something like negligent homicide. The argument there is that, while the act that caused the accident was not voluntarily, simply getting behind the wheel knowing that you have epilepsy is criminally negligent.

        But a werewolf doesn’t have to undertake any affirmative acts (i.e. driving a car) to be dangerous, and the law usually doesn’t punish mere failure to act as a crime, though there are important exceptions where a duty to act is imposed by law. Perhaps it could be argued that something as simple as moving to a populated area while knowing of one’s werewolf status is a criminally negligent act.

      • I think werewolfism (“lycanthropy”?) should be treated as a infectious and often fatal disease; somthing kinda like AIDS and company but with a predictable temporary mental illness aspect

  2. “Of course, many supervillains do suffer from mental illnesses of some sort, even if they aren’t sufficient to make out a defense of insanity, so housing them in Arkham isn’t necessarily inaccurate or inappropriate, but neither is it evidence that the inmates there were found not guilty by reason of insanity.”

    My understanding is that the “insanity defense” is really a misnomer. While someone such as the Joker can be medically diagnosed a psychological sociopath, “[h]e always knows exactly what he is doing, and always knows that what he is doing is illegal.” He can clearly be found guilty of the crimes committed, but due to this mental instability, he may be designated to serve his time in a mental institution, in this case, Arkham Asylum. If anything, showing evidence of insanity w0uld influence sentencing rather than the verdict.

    • No, there’s a distinction between “not guilty by reason of insanity” and “guilty but mentally ill.” Insanity is a legal defense or excuse, not a medical diagnosis.

      A possible source of confusion here is involuntary commitment, which is a way to confine and treat someone who is a danger to themselves or others because of their mental illness. Involuntary commitment is a civil process, not a criminal one. Someone who is found not guilty by reason of insanity may or may not be involuntarily committed afterward. If the insanity was temporary, they are unlikely to be committed.

      Someone who is guilty but mentally ill may serve out their sentence in a mental institution rather than a prison (particularly if no prison has appropriate facilities), but they are still a convicted criminal. For example, if they are cured of their mental illness before the end of their sentence they will be sent to a regular prison to finish it out.

    • That’s one of the criticisms of the way the law handles insanity with respect to it being a potential defense to criminal charges: it’s completely unrelated to any kind of medical diagnosis. So a bona fide schizophrenic can be found guilty of a crime under certain circumstances, while someone else who is the pinnacle of mental hygiene could, under other circumstances, make use of it. I think what you’re getting at is the “guilty but mentally ill” verdict mentioned in the post.

    • Sociopathy is generally (though not always) not considered grounds for confinement to an insane asylum. In point of fact, the overwhelming majority of prison inmates- in the USA, but also the UK and probably nearly every country on Earth-, meet the criteria for sociopathy, or Anti-Social Personality Disorder (or equivalent). Some are worse than others, of course, but even the most extreme cases don’t end up in mental asylums. The criteria for sociopathy means that pretty much every career criminal is a sociopath by definition.

      In general, personality disorders are not sufficient grounds to not put the perpetrator in prison. Most supervillains by definition fit the bill for Narcissistic, Anti-Social and at least one other personality disorder- nearly ALL Arkham inmates, or all the famous ones anyway, are sociopaths as much as the Joker is, and he is not only a narcissistic sociopath, he is also a histrionic (pathological attention seeker) and a sadist (which is different from a sociopath, but not mutually exclusive) at least. Though the comic book version may indeed have other issues such as PTSD and dissociation and other more unusual conditions (the film and cartoon versions usually don’t, though they get locked up in Arkham anyway).

      Its possible that in Gotham State personality disorders actually does qualify as grounds for institutionalisation (would explain a lot, actually), but it seems more like the inmates are there on the Irresistable Impulse card, or rather their claiming of it. Its also possible that Gotham is so corrupt that the insanity defence laws are intentionally lax in order to allow criminals and the corrupt to abuse it. Should also be noted that most Arkham doctors are quacks whose diagnosis are unreliable to say the least, while the rest are just going through the motions and aren’t really trying to cure anyone so much as survive until they can take early retirement (I imagine that Arkham is the DC-verses equivalent of Guantanomo Bay- its only still open because no other city / state wants to take the inmates off of them).

  3. Regarding a “mindless” enemy…given the previously-discussed Imago Dei concept, if you had a human villain with his higher brain functions destroyed (not uncommon in comic books, and presumably on the rise in our world as reality television continues to expand) and then sent on a rampage, is there actually some chance that said person would be treated like the animal he’s essentially become?

    I agree with Iggy, otherwise. It does seem like “insanity defense” is more shorthand for “not being incarcerated in a maximum security prison” than having been found not guilty. Or writers simply don’t know the difference, which is also a strong possibility.

    • No, the insanity defense, as such, really is a defense to conviction. If a defendant successfully proves the elements, he is not guilty. And it isn’t even necessarily the case that being mentally ill means you get treated differently. A significant percentage of the current US prison population suffers from at least one diagnosable mental illness.

  4. Assuming for the sake of argument that there is a facility capable of containing Bruce Banner, how would an involuntary commitment procedure work? According to Wikipedia (the three most trusted words in information!), and your post, involuntary commitment is used in cases of mental illness. However, what mental illness would Bruce Banner have? My understanding is that “mental illness” is a specific designation in the psychiatric field, like “insane” in the legal field. I don’t think that “Angry and Green Personality Disorder” is likely to be in the DSM, since it’s essentially a one-off thing.

    Would the legislature have to pass a law expanding the definition of “mental illness” or create a separate category under which he could be committed?

    • I don’t have a copy of the DSM IV handy, but there are any number of diagnoses in it that boil down to, “he gets angry and starts smashing stuff”. The fact that Bruce Banner turns green and gets really strong is secondary, he still has the underlying anger management issues.

    • See, that’s just the thing: a medical diagnosis is not required to prove the insanity defense or involuntarily commit someone. The former simply requires that the elements in the post be proven. The latter requires a finding by a judge that the person poses a danger to themselves or others due to their mental state. A diagnosis can certainly help there, but if it seems obvious that a person is mentally imbalanced in such a way that they’re a risk, whether or not they’ve got an official medical diagnosis is irrelevant.

    • Bruce Banner has a clear-cut case of Dissociate Identity Disorder- Multiple Personalities. In fact, its possible (even likely) that this is more due to years of childhood abuse and other mental illnesses than the gamma rays that gave him his powers, as evidenced by the likes of the Abomination and others who got Hulk-like powers from Gamma Rays but retained their sense of identity.

      So, it was the trauma of the gamma rays that triggered his DID, and the powers that he gaimed manifested accordingly. Had Bruce been a more well-adjusted human being, he might have got permanent Hulk powers but not mentally turn into the Hulk; conversely, without his powers he might still “Hulk-out”, but it would manifest more as Hulk-as- Bruce Banner grabbing a baseball bat and starting to smash stuff (though the Hulk personalities go away whenever he loses his powers, this could simply be because Banner is so convinced that the powers and the Hulk are one-in-the-same that “your mind makes it real” is in effect).

      On that note, someone like Two-Face doesn’t seem to have DID even though he is diagnosed with it, instead having genuine schizophrenia (which fiction often conflates with DID), as well as Borderline Personality Disoder and, of course, sociopathy and his anger problems, which is the real thing that makes him so dangerous. The fact that Two-Face almost always answers to the name Harvey Dent, and that both sides share the same memories, suggest that Two-Face only BELIEVES he has DID, possibly because / reinforced by Arkham doctors and others telling him he does, but in reality Two-Face is and always has been Harvey Dent, convincing himself that “Two-Face” is responsible for all of the crimes he commits because the alternative, that it was him all along and he’s just deflecting responsibility, is too horrifying for him to accept. Harvey is mentally ill, but misdiagnosed by Gotham’s “finest” psychologists.

  5. Deadpool may be another example of a credible candidate for the insanity defense. He either regularly or constantly hallucinates massively, and while those hallucinations may still be violent, there really does appear to be compulsion to commit those violent acts (even if he doesn’t know exactly what the targets really are, he still knows they’re in the category of “things which there are laws against shooting/making explode; he just can’t help himself)

    • Hmm. Interesting. Actually, that might go either way. Say he hallucinates an image of Cable, decides to kill what he perceives as Cable, and winds up killing an innocent bystander. Unless he perceived that Cable was trying to kill him, he has the requisite mental state for murder, and could thus theoretically be found guilty of the attempted murder of Cable and the murder of the bystander from the same act.

      But if he hallucinates that Cable was trying to kill him and he acted in self-defense, that’s another story. His mental state is not guilty, and the fact that someone dies can only get him a conviction for negligent homicide at worst.

      Actually though, if a person is hallucinating as badly as he does, there’s a good question as to whether they’re even competent to stand trial. That’s a forthcoming post, so I’ll leave it at that for now, but it seems a good possibility.

  6. Would you look at “The trial of Magneto” at some point?

    His powers cause a paranoid mental state, with increasing dislocation from reality. Where persons are percieved as more and more threatening. But a healthy Magneto “comes down” off the altered state when he powers down…we need a real-world diagnosis of Magneto.

    Happily, one does exist:

  7. I think the idea with Arkham isn’t so much that all these supervillains are getting found not guilty by reason of insanity — rather, it’s just generally difficult to convict people apprehended by superheroes because the heroes can’t appear to testify against them. So a lot of Batman’s rogues couldn’t be convicted under the law, so confining them for psychiatric care is the only available option.

    I agree that the Joker knows his acts are illegal, and revels in his anarchy. But what about Two-Face? Harvey Dent believes he’s serving a higher law, the law of the coin. In at least some continuities, he considers his actions to be just. Can you be aware of the illegality of your actions if you have an insane definition of what legality is in the first place?

    As for Bruce Banner, he does have a mental illness. Ever since the ’80s, he’s been defined as a shapeshifter with dissociative identity disorder (aka multiple personalities), with his various Hulk incarnations being outward manifestations of his various personalities.

    As for how you lock Banner/Hulk away, a few years ago the top Marvel heroes tried exiling him to an uninhabited planet, but that didn’t work out so well (see Planet Hulk).

    • Two-Face may believe that his actions are just, but he knows they are illegal. It is not up to him to decide how to define the law. That would basically excuse any criminal or terrorist who tries to justify their actions by saying they “had” to do it, or that what they did was justified by some higher purpose. The law disagrees, so too bad for you.

  8. Humpty-Dumpty is a good example of a potential insanity defense candidate in Arkham. Depending on the writer, he’s either extremely autistic or borderline mentally retarded in that he simply can’t grasp the world outside of that there are broken things that need to be fixed. He never set out to cause harm, so you can’t really convict him of murder. Extreme negligence and all sorts of trespassing when he does things like trying to “fix” a squeaky set of train brakes. Possibly desecration of the dead or manslaughter depending on how you interpret his explanation that his grandmother was broken, so he fixed her.

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  10. What about someone like Two-Face, who has a split personality and a psychological compulsion to follow the dictates of whatever side his coin lands on?

  11. Considering how infamously corrupt Gotham is, perhaps all those criminals that belong in a supervillain-proof prison pay off the judges to judge them not-guilty by reason of insanity or similar and they get sent to Arkham to get cured, leaving after they pay off some docs to deem them sane again

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  13. Cited this article in my book Batman and Psychology: A Dark and Stormy Knight, chapter 8.

    My favorite explanation is that judges and prosecutors who want to keep breathing hastily accept the insanity please so people like the Joker are less likely to hunt them down. Of course, judges and prosecutors who want to keep breathing really shouldn’t live in Gotham in the first place.

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  15. Btw, how can people be convicted with the irresistible impulse defense? If they couldn’t resist the impulse it is just about the same as a force of nature; it is like trying to blame someone for the death of a person that was hit by lightning (if the accused isn’t known to posses the ability to influence lightning strikes of course); people can’t, or at least shouldn’t, be held accountable for things they have no control over…

    • Ryan Davidson

      Most states don’t allow the “irresistible impulse” defense. Simply put, people are responsible for their actions, as a matter of law, unless they simply cannot understand what they’re doing. “I couldn’t help it” does not affect one’s guilt or innocence. At best, it might change first degree murder to second degree or be taken into account at sentencing.

      • Has there been any court rulings involving a crime committed by the affected hand of someone suffering from alien hand syndrome?

    • Basically, it boils down to “Did you know that you sometimes have an irresistible impulse to commit a crime? You did? Did you go to the police or a mental health clinic or anywhere else to get some help for this? You didn’t? T.S.

      The problem with “Irresistible Impulse” is that logically it can be used for other cases- a drug addict might have an irresistible impulse to buy heroin, or steal to feed their habit; an alcoholic might have an irresistible impulse to drink even though they are prone to violence while under the influence (another example of “irresistible impulse”). A sadist might have an uncontrollable urge to torture someone for fun; an adrenaline junkie might have an overwhelming desire to break the speed limit or break into private property.

      And so on. All of the above fall under mental health issues- where do you draw the line?

      • Exactly right, and this makes irresistible impulse apply to more than one might realize…

        You become a killer out-of-control werewolf every full moon? You might be able to use lack of knowledge the first time (same way an epileptic who had their first seizure while driving might), but once you know you’re a werewolf you have an obligation to make sure you don’t wolf out in a place where you can hurt someone.

        Someone mentions Two-Face above. Legally he’d be obligated to seek help to stop his compulsion. But he does not get a pass because he fels obligated to act on it.

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