GEE, Circuit Judge:
Defendant Robert Lyons was indicted on twelve counts of knowingly and intentionally securing controlled narcotics by misrepresentation, fraud, deception and subterfuge in violation of 21 U.S.C. § 843(a)(3) (1976) and 18 U.S.C. § 2 (1976). Before trial Lyons informed the Assistant United States Attorney that he intended to rely on a defense of insanity: that he had lacked substantial capacity to conform his conduct to the requirements of the law because of drug addiction. See Fed.R.Crim.P. 12.2(a). Lyons proffered evidence
In response to the government's motion in limine, the district court excluded any evidence of Lyon's drug addiction, apparently on the ground that such an addiction could not constitute a mental disease or defect sufficient to support an insanity defense. A panel of this Court reversed, holding that it was the jury's responsibility
For the greater part of two decades our Circuit has followed the rule that a defendant is not to be held criminally responsible for conduct if, at the time of that conduct and as a result of mental disease or defect, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. Blake v. United States, 407 F.2d 908, 916 (5th Cir.1969) (en banc).
Today the great weight of legal authority clearly supports the view that evidence of mere narcotics addiction, standing alone and without other physiological or psychological involvement, raises no issue of such a mental defect or disease as can serve as a basis for the insanity defense. Bailey v. United States, 386 F.2d 1, 3-4 (5th Cir.1967), cert. denied, 392 U.S. 946, 88 S.Ct. 2300, 20 L.Ed.2d 1408 (1968). Accord, United States v. Coffman, 567 F.2d 960, 963 (10th Cir.1977); United States v. Moore, 486 F.2d 1139, 1181 (D.C.Cir.) (en banc), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973); United States v. Stevens, 461 F.2d 317, 321 (7th Cir.1972); Gaskins v. United States, 410 F.2d 987, 989 (D.C.Cir.1967); Green v. United States, 383 F.2d 199, 201 (D.C.Cir.1967), cert. denied, 390 U.S. 961, 88 S.Ct. 1061, 19 L.Ed.2d 1158 (1968); United States v. Freeman, 357 F.2d 606, 625 (2d Cir.1966); Berry v. United States, 286 F.Supp. 816, 820 (E.D.Pa.1968), rev'd on other grounds, 412 F.2d 189 (3d Cir.1969). Cf. United States v. Romano, 482 F.2d 1183, 1196 (5th Cir.1973), cert. denied sub nom. Yassen v. United States, 414 U.S. 1129, 94 S.Ct. 866, 38 L.Ed.2d 753 (1974) (being involuntarily under the influence of drugs at the time of the crime is not a legal equivalent of insanity). See also Fingarette, Addiction and Criminal Responsibility, 84 Yale L.J. 413, 424-25 (1975) ("there is no consensus in the medical profession that addiction is a mental disease").
There are a number of reasons why. In the first place, there is an element of reasoned choice when an addict knowingly acquires and uses drugs; he could instead have participated in an addiction treatment program. Moore, 486 F.2d at 1183 (opinion of Leventhal, J.). A person is not to be excused for offending "simply because he wanted to very, very badly." Bailey, 386 F.2d at 4. Second, since the defense of insanity is "essentially an acknowledgement on the part of society that because of mental disease or defect certain classes of wrongdoers are not properly the subjects of criminal punishment," Freeman, 357 F.2d at 625, it seems anomalous to immunize narcotics addicts from other criminal sanctions when Congress has decreed severe penalties for mere possession and sale of narcotics. Id. In addition, Congress has dealt with the problem of responsibility of narcotics addicts for their crimes by providing for civil commitment and treatment of addicts in lieu of prosecution or sentencing. Bailey, 386 F.2d at 4. See,
Finally, what definition of "mental disease or defect" is to be employed by courts enforcing the criminal law is, in the final analysis, a question of legal, moral and policy — not of medical — judgment.
Contravening the broad thrust of the authorities cited above, the panel opinion appears to suggest that "involuntary" drug addiction can constitute a "mental disease or defect" bearing on the defendant's criminal responsibility. 704 F.2d at 747. The panel believed itself bound to that rule by such a holding in United States v. Bass, 490 F.2d 846 (5th Cir.1974). In so concluding the panel acted with obvious reluctance but with fidelity to the principle that one panel of our court does not overrule another. Today, sitting en banc, we overrule Bass insofar as it may be read to hold that mere drug addiction, voluntary or involuntary, can be a mental disease for legal purposes. Insofar, however, as it countenanced the receipt of evidence of drug addiction in connection with Bass's genuine mental disease — chronic anxiety — to which it contributed, we find no fault with the opinion.
Although mere narcotics addiction is not itself to be acknowledged as a mental disease or defect, evidence of narcotics addiction has been received by some courts as evidence of such an underlying condition. Green v. United States, 383 F.2d 199, 201 (D.C.Cir.1967), cert. denied, 390 U.S. 961, 88 S.Ct. 1061, 19 L.Ed.2d 1158 (1968). In addition, if addiction has caused actual physical damage to the structures of a defendant's body, evidence of that addiction has been admitted to show any mental defect resulting from that damage. Cf. Brinkley v. United States, 498 F.2d 505, 511-12 (8th Cir.1974) (remanding to explore possible physiological and psychological effects of long term LSD use on appellant and whether these effects might amount to insanity).
We view the reasoning of such rulings as Green with profound misgivings. To us it seems to rest on the proposition that, assuming drug addiction itself is neither a mental disease nor a defect, yet the two are often to be found in association, so that an addicted person is more likely to suffer from some mental disorder than is one who
Our review of numerous records over the course of years has revealed no dearth of experts ready and willing to testify squarely on the issue of insanity in criminal trials: direct evidence on the issue seems all but too readily available. Since this is so, receiving evidence of drug addiction in addition seems to us an exercise seldom likely to prove more probative than prejudicial in practice. See Rule 403, Federal Rules of Evidence.
Nor do we see how matters are clarified by reference to the condition of addiction as one involving "psychological damage" to the addict, e.g., Brinkley v. United States, supra. As nearly as we can determine, the psychological condition so described is simply one of drug addiction to one degree or another, a condition that we have already declined to view as a mental disease or defect for legal purposes. An actual drug-induced or drug-aggravated psychosis, or physical damage to the brain or nervous system would, however, be another matter.
We do not doubt that actual physical damage to the brain itself falls within the ambit of "mental disease or defect." To refuse to recognize that a congenital microcephalic, or one who has suffered, say, extensive brain damage from a gunshot wound or other physical trauma, may be thereby rendered unable to appreciate the character of his conduct as wrongful would be presumptuous. Here, within the limits of appropriate legal and policy considerations, the medical model must have its day. The same is true of the question whether such organic brain pathology or psychosis can be caused by drugs.
Lyons asserted by his proffer of evidence that his drug addiction caused physiological damage to his brain and that this damage caused him to lack substantial capacity to conform his conduct to the requirements of the law. 704 F.2d at 746. Since he did so, he should — under our subsisting Blake test — have been allowed to introduce evidence of any physical brain damage and consequent mental disease or defect. Because the proffer offers evidence tending to suggest such damage, that evidence should have been submitted to the jury. Blake, 407 F.2d at 911. And although we today withdraw our recognition of the volitional prong of Blake — that as to which such evidence has usually been advanced — we also conclude that should Lyons wish to offer such evidence in an attempt to satisfy the remaining cognitive prong, fairness demands that we afford him an opportunity to do so.
Because the concept of criminal responsibility in the federal courts is a congeries of judicially-made rules of decision based on common law concepts, it is usually
Reexamining the Blake standard today, we conclude that the volitional prong of the insanity defense — a lack of capacity to conform one's conduct to the requirements of the law — does not comport with current medical and scientific knowledge, which has retreated from its earlier, sanguine expectations. Consequently, we now hold that a person is not responsible for criminal conduct on the grounds of insanity only if at the time of that conduct, as a result of a mental disease or defect, he is unable to appreciate the wrongfulness of that conduct.
We do so for several reasons. First, as we have mentioned, a majority of psychiatrists now believe that they do not possess sufficient accurate scientific bases for measuring a person's capacity for self-control or for calibrating the impairment of that capacity. Bonnie, The Moral Basis of the Insanity Defense, 69 ABA J. 194, 196 (1983).
Bonnie, supra, at 196.
One need not disbelieve in the existence of Angels in order to conclude that the present state of our knowledge regarding them is not such as to support confident conclusions about how many can dance on the head of a pin.
Thus, Lyons' claim that he lacked substantial capacity to conform his conduct to the requirements of the law will not raise the insanity defense. It would be unfair, however, to remit him retroactively
VACATED and REMANDED.
ALVIN B. RUBIN and JERRE S. WILLIAMS, Circuit Judges, with whom POLITZ, TATE, and HIGGINBOTHAM, Circuit Judges, join, concurring in part and dissenting in part:
The sole issue raised by the appellant, Lyons, and by the appellee, the United States, is whether iatrogenic narcotics addiction alone may constitute a mental disease or defect sufficient to support the defense of insanity in a criminal prosecution. The court ranges far beyond this narrow issue. It uses this case as a vehicle to reconsider and to redefine the scope of the insanity defense, although such a reconsideration and redefinition was not asked for in the district court or in this court by either of the parties. We are constrained to dissent from this serious misadventure in the judicial process.
We agree with the conclusion the court reaches in Part I of its opinion that drug addiction alone is insufficient to support an insanity defense. We reach that conclusion, however, through a different route, which does not require the overruling of United States v. Bass, 490 F.2d 846 (5th Cir.1974).
A review of the precedents in this circuit concerning narcotics addiction and the insanity defense must begin with Bailey v. United States, 386 F.2d 1 (5th Cir.1967), cert. denied, 392 U.S. 946, 88 S.Ct. 2300, 20 L.Ed.2d 1408 (1968). In Bailey, the defendants were charged with various crimes relating to the purchase and possession of narcotics. As in Lyons' case, their theory was that addiction is itself a disease or defect that creates a compulsion to procure and to use narcotics, and that one acting under such a compulsion should not be held criminally responsible. Id. at 3. Their proffer consisted of their testimony that they were "addicted to narcotics, had been unable to cure [their] addiction, and could not resist the daily use of the [narcotics]." 386 F.2d at 3. At that time this Circuit was still applying the earlier insanity rule, as articulated by the Supreme Court in Davis v. United States, 165 U.S. 373, 378, 17 S.Ct. 360, 362, 41 L.Ed. 750 (1897), derived from M'Naghten's Case, 8 Eng.Rep. 718 (1843). That test, in essence, exculpates a defendant who, because of mental disability, is incapable of distinguishing between right and wrong, or is unable to control his conduct. See Blake v. United States, 407 F.2d 908, 913 (5th Cir.1969) (en banc). While the Bailey defendants urged us to adopt the American Law Institute's Model Penal Code standard, we held that the case was not "a proper vehicle for reexamination of [the appropriate insanity standard] for the reason that the issue of criminal responsibility was not raised by the evidence." 386 F.2d at 3.
Our opinion in Bailey recognized that, according to the weight of authority, "a mere showing of narcotics addiction, without more, does not constitute `some evidence' of mental disease or insanity so as to raise the issue of criminal responsibility." Id. at 4 (quoting Heard v. United States, 348 F.2d 43, 44 (D.C.Cir.1965)). Moreover, we expressed doubt that addiction to narcotics actually deprived the addict of the ability to obey the law: "It would appear that an element of reasoned choice yet exists when an addict knowingly violates the law in acquiring and using drugs. One is not excused for offending simply because he wanted to very, very badly." 386 F.2d at 4. Finally, we noted in Bailey that Congress had passed laws designed to assist the criminal offender addicted to narcotics. The Narcotic Addict Rehabilitation Act of 1966,
The majority opinion suggests that Bailey may have been limited or overruled by our later decisions in Blake v. United States, 407 F.2d 908 (5th Cir.1969) (en banc), and United States v. Bass, 490 F.2d 846 (5th Cir.1974). The members of the panel that initially heard this case shared that view, thought the interpretation undesirable, and suggested en banc review to modify or to clarify the holdings of Blake and Bass. We need not here discuss the exact reach of those two decisions because, sitting en banc, we are not bound by them. Whatever might be their scope as applied to other contentions, however, neither Blake nor Bass is inconsistent with the Bailey court's conclusion that addiction alone is not enough to raise the insanity defense. And that is the sole issue pressed before us: that evidence of iatrogenic addiction suffices to require presentation of the issue of criminal responsibility to a jury.
In Blake we adopted the Model Penal Code definition of the insanity defense. We did not, of course, discuss whether proof of narcotics addiction of itself would suffice under our newly adopted test. But Blake did not qualify Bailey. In Bailey we had expressly refused to consider adopting the Model Penal Code standard, not because we disapproved of it in any way, but because we concluded that under any test narcotics addiction alone was insufficient to constitute insanity and to negate criminal responsibility. 386 F.2d at 3.
Moreover, in United States v. Tsoi Kwan Sang, 416 F.2d 306 (5th Cir.1969), decided after Blake, we reaffirmed our holding in Bailey. We held that the defendant had produced evidence sufficient to warrant submitting the issue of insanity to the jury. We stated specifically that "the opinion of the court ... did not conflict with [Bailey because] ... the evidence of insanity [went] well beyond mere addiction." Id. at 310 (on petition for rehearing and rehearing en banc).
United States v. Bass, supra, overruled at least in part by the majority opinion, did not involve a claim of an insanity defense based upon narcotics addiction alone. The defendant suffered from an acutely painful and incurable disease. Around the time of the indictment, Bass had suffered several fevers that, in the opinion of one doctor, had inflicted temporary brain damage. Bass suffered from "chronic anxiety," and had discussed suicide. We held that he had made an initial showing of insanity sufficient to shift the burden of proof to the government. But we did not rest our holding on narcotics addiction alone. Indeed, we did not even rely primarily on narcotics addiction:
Id. at 850 (emphasis added). Our holding in Bass, therefore, is not inconsistent with Bailey. As in Tsoi Kwan Sang, the evidence of insanity went "well beyond mere addiction."
These cases establish a relatively clear standard. Bailey holds that narcotic addiction alone is insufficient to raise the insanity defense. Tsoi Kwan Sang and Bass make it clear that addiction, when accompanied by evidence of mental disease or defect, may suffice for an initial showing of insanity.
It thus is well-established in this Circuit, as well as elsewhere, that narcotics addiction
We do not, therefore, dissent from the basic conclusion reached by the majority in Part I of its opinion that evidence of narcotics addiction standing alone is not sufficient to warrant a trial court's submitting an insanity defense to the jury. Nor, had the argument been made on appeal that the proffer's purpose was to show the existence of a mental disease or defect, to be evaluated under the Bass standard, would we dissent from a reversal for the purpose of receiving that evidence. But these statements establish the grounds for our dissent: Having decided the question that disposes of this case, the majority undertakes to examine an issue neither raised in the trial court, tendered by the parties on appeal, nor suggested by the panel.
This case simply does not require redefinition of the insanity defense. The proffer did submit that Lyons' drug usage might have affected his brain "both physiologically as well as psychologically," and this, conceivably, might be read to suggest the existence of a disease or defect. But Lyons did not make this contention on appeal, and the government did not choose to focus its reply to Lyons' appeal on the impropriety of the existing standard; it chose instead to argue that he had failed to offer evidence sufficient to meet that standard.
The majority's strained reading of the record and caselaw hardly justifies its self-appointed mission of redefining the insanity defense. That mission is as unwise as it is unnecessary. As the government's lawyer observed during oral argument to the en banc court, this is an inappropriate case and an inopportune time for such an exercise.
There is now substantial ferment concerning the insanity defense. See the summary in Dutile & Singer, What Now for the Insanity Defense?, 58 Notre Dame L.Rev. 1104 (1983). Congress is evaluating proposals for change as it considers comprehensive legislation to revise the United States Criminal Code. See, e.g., 41 Cong. Quarterly 633 (1983) (administration proposals). The American Bar Association House of Delegates, at its meeting in February 1983, established an official American Bar Association policy recommending a change in the standards and burden of proof with respect to the insanity defense.
When the evidence in a case squarely raises a question concerning the continued applicability of the volitional test to the definition of insanity, it will be our duty to consider that issue. But the policies embodied in the prerequisites to the insanity defense are too fundamental and too critical to be resolved in the abstract. Considering it sua sponte en banc, the majority demonstrates a complete lack of appropriate judicial self-restraint. Concurring in Part I of the opinion, we would affirm the result reached by the district court. We dissent from all of the obiter dicta that constitutes the rest of the opinion.
Because the majority opinion does redefine the standards that determine criminal responsibility, Judge Rubin will hereafter file a dissent from the adoption of a test that would permit the criminal law to be used to punish persons who lack any ability to conform their conduct to the law, and would thus by judicial redefinition convert our criminal legal system into one of punishment without fault.
JOHNSON, Circuit Judge, dissenting.
This dissent is necessitated by the mischaracterization of the panel opinion by both the majority and the dissenting opinion of Judges Rubin and Williams; by the mischaracterization of Lyons' contentions on appeal by both opinions; and because of the sincere belief that the Court is here choosing a particularly inopportune time to delve into the quagmire of the insanity defense.
The issue on appeal in the Lyons case was quite clear; it was not whether Lyons was indeed insane. The issue was simply whether Lyons should have been permitted to submit his insanity argument and defense to the jury. The jury, of course, was fully entitled to reject or accept his contentions. The panel concluded that Lyons should have been permitted to submit his argument and defense to the jury under existing precedent and I continue to believe that the existing precedent of this circuit requires such a result.
It is noted at the outset that Lyons' proffer goes far beyond a mere allegation of iatrogenic drug addiction. The majority's and Judge Rubin's and Judge Williams' characterization of Lyons' contentions as alleging mere drug addiction is, in my judgment, inaccurate. An examination of Lyons' proffer demonstrates that Lyons' addiction became so extreme that he lost over forty pounds and suffered from drastic malnutrition. The proffer notes that "[h]is decalcified bones had become so brittle that during the course of [a] convulsion, he broke three  ribs, three  vertebrae, and his left hip was completely torn from the socket." Moreover, Lyons offered to present two expert witnesses, indeed medical witnesses, that would testify that
When Lyons' proffer is viewed in its true form, it becomes clear that he was entitled to submit his insanity defense to the jury under existing precedent.
United States v. Lyons, 704 F.2d 743, 747 (5th Cir.1983). For these reasons, the reasons which are more fully explained in the panel opinion, it is my belief that Lyons should be permitted to present his insanity defense to the jury under the law of this Circuit.
Having explained why Lyons should have been permitted to submit his case to the jury under the existing precedent of this Circuit, I pause to note my agreement with many of the concerns stated by Judge
Johnson, Book Review, 50 U.Chi.L.Rev. 1534, 1548 (1983) (reviewing N. Morris, Madness and the Criminal Law (1982)).
Commentary (revised November, 1983) to Standards 7-6.1(a) and 7-6.9(b), ABA Standing Committee on Association Standards for Criminal Justice (to be published).
Johnson, Book Review, 50 U.Chi.L.Rev. 1534, 1536 (1983) (reviewing N. Morris, Madness and the Criminal Law (1982)).