Ethical and Legal Issues 729
Dangerousness: Legal Consequences
Andrew Goldstein’s attack on Kendra Webdale wasn’t the fi rst time he had engaged
in dangerous behavior, and his dangerous behavior wasn’t a secret.
In the two years before Kendra Webdale was instantly killed on the tracks, Andrew
Goldstein attacked at least 13 other people. The hospital staff members who kept
treating and discharging Goldstein knew that he repeatedly attacked strangers in pub-
lic places.
He was hospitalized after assaulting a psychiatrist at a Queens clinic. [The clinic
note from November 14, 1997, reads]: “Suddenly, without any warning, patient springs
up and attacks one of [the] doctors, pushing her into a door and then onto the fl oor.
He was hospitalized after threatening a woman, [again] after attacking two strangers
at a Burger King [and yet again] after fi ghting with an apartment mate.” [A note from
March 2, 1998, says]: “Broke down roommate’s door because he could not control the
impulse.” And particularly chilling, six months before Kendra Webdale’s death, he was
hospitalized for striking another woman he did not know on a New York subway.
(Winerip, 1999a)Goldstein’s history indicates that he had become dangerous. Dangerousness, a legal
term, refers to someone’s potential to harm self or others. Determining whether
someone is dangerous, in this sense, rests on assessing threats of violence to self
Key Concepts and Facts About Criminal Actions and Insanity
- Various tests have been used to determine whether a defendant
is insane. The first was the M’Naghten test in 1843, followed
by the irresistible impulse test. After almost 70 years came the
Durham test. Many states presently use the American Legal In-
stitute (ALI) test, which requires either impaired knowledge that
the behavior was wrong (cognition) or impaired capacity to re-
sist the impulse to act illegally (volition). The Insanity Defense
Reform Acts of the 1980s did away with the volition element to
determine insanity in federal courts. - Two issues are still to be clarified by the courts: (1) whether
someone who is legally insane must have known that the act was
“wrong” versus “illegal” and (2) whether insanity depends on
knowing in the abstract that an act is wrong versus knowing that
the specifi c behavior is wrong in the particular circumstance. - To assess insanity, a jury may rely on testimony about the defen-
dant’s mental state during the time leading up to the crime, the
defendant’s history of mental illness prior to the crime, and tes-
timony or reports from expert witnesses about the defendant’s
mental state or mental illness. - Mental health clinicians may assess a defendant’s sanity
through interviews with the person, psychological tests and
questionnaires, and interviews with family members and
friends. However, such measures may be affected by the de-
fendant’s experiences in jail, medications he or she may be
taking, the decision to plead not guilty by reason of insanity
(NGBI), reactions to the crime, coaching from the defendant’s
lawyer or other inmates, and the way the defendant responds
to various assessment methods. But none of this information
necessarily indicates the defendant’s mental state at the time
of the crime.- Some states offer alternatives to the insanity defense, including
those of diminished capacity and guilty but mentally ill. - Research indicates that acquittal on the basis of the insanity de-
fense is extremely rare, particularly when the decision is made
by a jury rather than a judge. - Competency to stand trial addresses the defendant’s mental
state before the trial and whether the defendant is competent
to participate in his or her own defense; someone who is not
competent to stand trial would also be deemed not compe-
tent to plead guilty and not competent to waive the right to an
attorney.
Making a Determination
- Do you think that Andrew Goldstein was insane, according to the
legal defi nition (cognition or volition), at the time of the crime?
Specifi cally, how did you arrive at your decision? If you would
like more information to determine whether he was legally in-
sane, what information—specifi cally—would you want, and in
what ways would the information infl uence your decision? - Reread Case 16.2 about Colin Ferguson, and determine whether
or not he should have been deemed competent (to stand trial
and to waive counsel). Specifi cally, how did you arrive at your de-
cision? If you would like more information to determine whether
he was legally competent, what information—specifically—
would you want, and in what ways would the information infl u-
ence your decision?
Dangerousness
The legal term that refers to someone’s
potential to harm self or others.