For Sanity and / or Clarity

The California Supreme Court certainly seems to have straightened things out regarding sanity pleas by criminal defendants. The court has interpreted Proposition 8 of 1982, the so-called Victims’ Bill of Rights, to mean that the voters intended to reinstate the old M’Naghten test of insanity: A defendant could be found not guilty by reason of insanity if he could not distinguish between right and wrong or did not know that what he was doing was wrong.

Unfortunately, the language of Proposition 8 used the word and rather than or , seemingly requiring a defendant to show both that he could not distinguish between right and wrong and that he did not know that what he was doing was wrong. It’s harder to prove two things than to prove one, so insane defendants were being sent to prison rather than to hospitals where they belonged. To set things right, the court said that the voters really meant or , even though the ballot said and .

Along with Justice Joseph Grodin’s majority opinion, two justices wrote separate views--one in concurrence, one in dissent.

Concurring with the six-justice majority, Justice Stanley Mosk added his own view that the case proved that the initiative process is a bad way to make laws. This is not the first time that poor draftsmanship in a ballot proposition has led to the enactment of ambiguous laws that the court had to interpret--sometimes to the chagrin of the proposition’s supporters. The initiative process “is somewhat comparable to the public deciding by popular vote the appropriate technique for surgeons to employ in brain surgery,” Mosk suggested.

The one vote against the court’s decision was cast by Chief Justice Rose Elizabeth Bird, who scolded her colleagues for writing their own views into a law in direct contradiction to what the voters had enacted. Bird has been charged with doing just that with the death penalty. Her critics assert that even though the voters thought that they were reinstating the death penalty in California in 1978, Bird has thus far found reasons to overturn every death-penalty conviction that has come before her. Those cases have, contrary to this one, involved more complex questions about constitutional protections and equal application of the law.

In the insanity case this week Bird concluded that the voters voted for and , and meant and . “However unwise that choice,” Bird wrote, “it is not within the court’s power to ignore the expression of popular will and rewrite the statute.”

Her point is clear. But in that clarity there is no remedy for drafting defects that, as her colleagues on the court found, can be an even greater barrier to implementing the will of the people.