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Law is a Ass by Bob Ingersoll
Join us each Tuesday as Bob Ingersoll analyzes how the law
is portrayed in comics then explains how it would really work.

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THE LAW IS A ASS for 04/01/2003

"The Law is a Ass" Installment # 190

Originally written as installment #167 and published in Comics Buyer's Guide issue # 813, June 16, 1989 issue

I like to write about how and why I came to write a specific column. Not this time, the how and why are right there in the column, I saw a trend--every costumed villain this side of the Polka-Don Man being declared insane and ending up committed to Arkham Asylum--which was wrong and tried to fix it by pointing out that most of the villains in the DCU aren't really insane and shouldn't be in Arkham.

Note I said "tried." No one paid attention to what I wrote in this column. The DC writers kept deciding villains were insane and dropping them in the asylum. And the population of Arkham Asylum continued to swell. At times at a rate rivaling that of New Delhi.

Boy, if you think a prophet is without honor, try being a lawyer sometime.


Installment # 190

Well, I got my answer. No.

Of course, to understand the answer, you have to know the question. The question, which I asked in a column sometime last year, was: don't they have prisons in the DC Universe? The answer, as I said, is no. Because in the DCU, all the bad guys are apparently in Arkham Asylum for the Criminally Insane.

I've been watching the ranks of Arkham swell for a few years now. Criminal after criminal who was little more than eccentric has ended up institutionalized in Arkham. Back in Batman # 400, I learned that the Mad Hatter was in Arkham. (Just because his nom de guerre is the Mad Hatter and his real name is Jervis Tetch is no reason to conclude the guy really is either mad or tetched.) In Black Orchid # 2, I discovered that Poison Ivy, Tweedledum, and Tweedledee had been institutionalized in Arkham. In The Sandman # 5, the Scarecrow joined the happy hoodlums at Arkham. (It's enough to make me wonder: is Neil Gaiman, scripter for the latter two entries, trying to flesh out the cast for fellow Brit Grant Morrison's forthcoming Arkham Asylum graphic novel?) Finally--but I doubt this will end the trend--in Batman # 433, I discovered that, unless I had misinterpreted the wordless panels, Penguin was now an Arkhamite.

Enough, to coin a cliché, is enough. I may not be a walrus--except, perhaps, in girth--but the time has still come to talk of many things. In other words, before I discover they've made Catwoman cataphrenic, let's discuss exactly what insanity is .

And, more important, what it isn't.

First, what it isn't. Insanity isn't a medical term. It, according to what the head of the Cleveland Court Psychiatric Clinic taught me in law school, is a legal term for persons whose impaired mental conditions renders them not criminally liable for their actions. Psychiatrists don't diagnose people as being insane, they diagnose them as being mentally ill. The courts declare people insane.

Insanity exists, because the Angelo/American system of criminal justice is based upon moral blameworthiness. It assumes people act with free will--if anything is free nowadays. Therefore, when people commit a criminal act with a criminal intent, they should be held criminally liable for the criminal crime. However, if someone commits a criminal act but does not have a criminal intent, then he should not be held criminally liable, because there was no crime.

For example, killing in self-defense. Here, the actor did not intend to commit a crime. He intended to save a life. Society wants to encourage saving lives. So, rather than impose criminal liability, society deems self-defense to be justifiable and praiseworthy.

In a similar manner, the law presumes that children under the age of seven cannot commit a crime. This age-old, age-based presumption is premised on the assumption that extremely young children do not have a fully-enough developed sense of right or wrong to appreciate the criminality of their actions. They are too morally-immature to be able to develop a criminal intent, so are not criminally liable.

Finally, if a somnambulist were to perform an illegal act while sleep-walking, he would not be held criminally liable. As the sleep-walker was asleep at the time, he did not act with free will and did not intend any crime.

Insanity works in similar ways. The landmark insanity case occurred back in 1843 in M'Naghten's Case. M'Naghten--the defendant, not the case; you can tell because the defendant's name isn't italicized--was on trial for the murder of Edward Drummond, secretary to the Prime Minister of England Robert Peel. M'Naghten asserted the insanity defense. The M'Naghten Court ruled insanity exists when the actor suffers from such a defect of reason that, at the time of his act, he did not know the difference between right or wrong and did not know what he was doing was wrong.

The M'Naghten test was criticized by persons who believed it was incomplete. They argued that persons whose mental illness drove them with an "irresistible impulse" to commit the crime, even though they knew it was wrong, were also insane. While M'Naghten dealt with the cognitive, wrongfulness issue of insanity, it ignored this volition issue.

In 1955, the American Law Institute drafted the Model Penal Code; an attempt to get states to abandon their old, common-law definitions for crimes--which varied widely from state to state--and adopt a uniform penal code. Although, no state adopted the MPC in its entirety, every state did, finally, draft a penal code based on the MPC.

Among its provisions, the Model Penal Code said a person is insane, if, "at the time of [his criminal] conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct [the Wrongfulness Test] or to conform his conduct to the requirements of the law [the Irresistible Impulse Test]."

The word "or" in the MPC insanity definition is, as it almost always is in the law, disjunctive in its use. That means either prong--the Wrongfulness Test or the Irresistible Impulse Test--alone satisfies the insanity definition. The other prong need not exist at all.

As of 1989, all fifty states have adopted an insanity test patterned after the Model Penal Code's definition. So, I assume that whatever state Gotham City is in--unfortunately, Gotham's been suffering from Multiple Personality Syndrome of late, it keeps bouncing back and forth between being New York City or Chicago--it has a Model-Penal-Code-derived insanity definition. Even if Gotham City doesn't have a MPC-based insanity definition, I'll pretend it does. It makes my job much easier!

As I have already said, in order for a person to be insane, he must have some mental disease or defect--which can include retardation, dissociative reaction, or other diseases which substantially affect mental processes and impair behavior such as paranoid schizophrenia. If the actor does not have the mental disease or defect, he cannot be legally insane.

I have seen no evidence that Scarecrow, Penguin, Mad Hatter, Poison Ivy, or Tweedledum and Tweedledee--to pick on a few--suffer from any mental disease or defect. To be sure, they are eccentric--even flamboyant--in their lifestyles of the rich and infamous. But eccentric flamboyancy is not the same as a mental disease or defect.

There was--not to speak ill of the dead--perhaps no more eccentrically flamboyant personality in recent years than the late Lee Liberace. Yet, Liberace was never given a rubber-lined dressing room at Carnegie Hall. That was because Liberace's flamboyancy wasn't the result of a mental defect. It was a carefully-planned tool designed to further his career.

In the same way, Scarecrow, Penguin, Mad Hatter, Poison Ivy, Tweedledum and Tweedledee use their flamboyance as a tool to further their own careers. That their careers happen to be criminal is unfortunate, but it is not indicative of any mental disease on their part. Otherwise, all criminals would be insane.

Therefore, Scarecrow, Penguin, Mad Hatter, Poison Ivy, Tweedledum and Tweedledee are not insane. (Yes, I know I'm being arbitrary. I've got to be deferential to judges all day at work. If I can't be arbitrary in my own column, when can I be?)

That, of course, leaves us with the burning question: who is insane? I'm not going to answer that. I have neither the time, the patience, nor sufficient word-count allowance to list every DC super-villain and tell you if he or she is insane. Instead, what I'll do is describe two examples of DC insanity--one who's insane under the Wrongfulness Test and one who's insane under the Irresistible Impulse Test--so you can see how it works, then let you make up your own minds as to where everyone else falls.

For the Wrongfulness Test, I chose the Joker--sometimes. Sometimes, such as in the recent "A Death in the Family" storyline, Joker seems completely rational. Homicidal, yes. Killing and loving it, yes. But, unless they issue straight jackets with hunting licenses, that's not insane. Then, other times--such as in "The Laughing Fish" from Detective # 475--he is not. I'll examine the latter.

In "The Laughing Fish", Joker suffers from a mental disease or defect. His thought processes show marked delusions of grandeur, which lead him to believe that he is, "the greatest criminal ever known." He feels that other people are inferior and unworthy of him. Therefore, Joker believes whatever steps he takes to achieve whatever ends he desires are all right. He does not feel that what he does is wrong no matter how much it hurts--or kills--someone else, because to his delusional mind no one else is important. Psychologists term Joker's thinking as dissociative--that is tending to produce nonsocial or antisocial behavior. When dissociative thinking is produced by a mental illness, such as acute delusions of grandeur, then the actor is criminally insane, because he does not appreciate the wrongfulness of his actions.

Next is Irresistible Impulse. This would be Two-Face. Two-Face was a perfectly sane prosecutor. (I have some friends who are prosecutors, so I'll avoid the obvious joke about oxymorons.) One day, a criminal threw acid at Two-Face and scarred exactly one-half of his face. Later, after plastic surgery had cured him, Two-Face was caught in an explosion, that rescarred the same one-half of his face.

What effect the former had on him, I don't know. The latter, however, clearly caused organic brain damage producing a mental defect. As a result, Two-Face is obsessed with the duality of human nature. He believes all men, himself in particular, are possessed of a good half and an evil half which constantly vie for control. Two-Face uses an artificial device to decide which side of his dueling dual nature wins. When he wants to decide what to do, he flips a two-headed silver dollar which is mint on one side and scarred on the other. If the coin lands scarred side up, Two-Face believes his evil side is in control and he does evil.

Although, Two-Face knows what he's doing is wrong, he can't resist doing it, when his silver dollar lands scarred side up. Two-Face is driven by a mental-illness-produced irresistible impulse. He, too, is insane.

I hope this little discussion clears up the question of insanity. I'd hate to wake up tomorrow and find out Kite-Man's in Arkham.

I will admit that anyone who thinks kites are an effective weapon for committing crimes or that hang-gliding in the middle of a city--with the sudden, building-produced updrafts and whirlwinds--is a good idea isn't particularly rational. But, if irrationality were proof of insanity, where would any of us be?


Actually, I, BOB INGERSOLL--comic book fan, Cleveland, Ohio public defender, and legal analyst--know where I would be. Arkham. After all, how rational can someone be, who takes pride in the fact that he bought his complete set of BBrother Power, the Geek--all two issues--on the newsstand instead of going through the pricy, Overstreet-influenced back issue market?

is, by the way, a rhetorical question.

Bob Ingersoll

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