Guilt, Innocence, Other

Usually, punishment is tied to crime. But there are cases when it would be unjust to punish someone who is nevertheless clearly guilty of criminal behaviour. And sometimes on the other extreme, for various reasons, innocent people need to be incarcerated. A third state, other than "guilt" and "innocence" is often used to circumvent the judicial binary. This is the basis of the "insanity" plea.

(I know I talk about insanity a lot, but I think it's something that doesn't get talked about enough, and silence leads to abuses. If I were religious and saw the potential for religion to be abused, I'd talk about that a lot.)

It seems to me that one of the consequences of having the insanity plea is that a huge bank of resources are tied up in making it legitimate. A lot of natural human experience is separated from the ethic of responsibility: for instance, one in five Canadians is, at some point in their lives, insane. Their free agency is legally withheld -- as are their natural right derived from free agency -- sometimes temporarily, sometimes permanently.

We build special jails (hospitals/asylums) for the institutionally irresponsible. We have experts who dedicate years of their lives to figuring out and arbitrating who is and is not responsible for their actions.

Have we gone too far? Should we foster a culture where so many are legally irresponsible? Should we even have the insanity defense? Is insanity real, or a convenient legal fiction? Or is free agency itself just a convenient legal fiction, which should be discarded when harmful?

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