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Volume 108, Issue 6


How to Get Away with Murder: The Norwegian Approach

Elena Smalline

J.D., Cornell Law School, 2023; B.S. (Business Management and Psychological Sciences), Rensselaer Polytechnic Institute, 2020.

3 Nov 2023

What does it mean for one to be insane enough to not be held responsible for a criminal act one committed? The answer to this question varies across differing eras, cultures, countries, and laws. If one were to ask English legal-scholar Sir Matthew Hale, he would assert that to be insane enough to not be culpable of a crime, one would need to experience “total alienation of the mind,” to the point of essentially being a wild animal. Conversely, Judge Bazelon, a former circuit judge for the District of Columbia, would insist upon acquittal any time someone could not “justly be held responsible.” Furthermore, if one were to abide by the M’Naghten Test, a defendant could only be insane if, at the time of the act, he suffered under a defect of reason such that he did not know the “nature and quality” of the act, or that his actions were wrong. If analyzing this same question under Norway’s unique Medical Model, one may be excused simply by determining that one has a certain mental disorder, without any further causal analysis.

Although these are only a few examples of the many ways to find someone legally insane, they demonstrate the extent to which insanity is a difficult concept to define, and therefore why it is such a difficult concept to implement legally. Part I of this Note will explore the origins of insanity law, including instances of where the concepts of insanity first arose, and from where the origins of responsibility and non-culpability can be drawn. Part II will focus on the evolution of insanity law in the United States and the varying tests applicable to the defense. Part III will delve into insanity law as it is defined in Norway, starting first with the historical origins of the Medical Model, and moving on to discuss how it is utilized today. Part IV will analyze how Norway’s Medical Model could be widely implemented in the United States through various legislative and judicial routes, including by way of amending the Federal Insanity Statute. Finally, Part V will review notorious cases in legal history and determine how they would have been resolved under the proposed amended Federal Insanity Statute, modeled after Norway’s Medical Model. Part V further analyzes whether the resolutions promote the policies of rehabilitation and treatment that the proposal encourages, as well as if the outcomes reflect other goals of the criminal justice system.

This Note is not meant to provide a solution to all conflicts within the field of insanity law. It is merely analyzing various types of insanity law and determining how a variation on the Norwegian Medical Model could be implemented in the United States in place of other tests and evaluating its implications. Norway’s Medical Model is discussed and utilized in this Note specifically because of its unique nature contrasting against insanity theories in the United States and other European countries, which require an inquiry beyond merely the existence of a mental defect. This Note in no way asserts that this is the best solution, or even a proper one, but is simply proposing an insanity theory that aims to promote the goals of rehabilitation and treatment in the criminal justice system.

To read this Note, please click here: How to Get Away with Murder: The Norwegian Approach.