A New Interpretation of the Modern Two-Pronged Tests for Insanity: Why Legal Insanity Should Not Be a 'Status Defense'

Michael Moore has argued that modern two-pronged tests for legal insanity are wrongheaded and that the insanity defense instead should be a 'status' defense. If Moore is right, then the laws on insanity in most legal systems are wrong. This merits a critical examination of Moore's critique and his alternative approach. In this paper I argue that Moore's status approach to insanity is either under- or overinclusive. A new interpretation of the modern tests for insanity is elaborated that hinges on the existence of a legally relevant difference between the mentally disordered defendant and the 'normal' defendant. This interpretation avoids Moore's criticism of the modern tests as well as the pitfalls of the status approach.