I like Arizona’s version of the insanity defense. While most states declare nutty criminals not guilty by reason of insanity, and apply the defense if the defendant either fails to appreciate the nature of his acts or does not know they are wrong, Arizona brands them “guilty except insane,” and applies only the latter test - not knowing the act was wrong.

MAD OR BAD? IN OVERSIMPLIFIED TERMS, that’s the question when a criminal defendant asserts an insanity defense — which is less often than viewers of “Law & Order” might imagine but too frequent for some state legislators. Last week, Arizona asked the U.S. Supreme Court to allow it to gut a definition of legal insanity that has been on the books since 1843.

“Asked the Supreme Court to allow it” sure sounds as though Arizona is the one appealing the sentence to the Supreme Court, doesn’t it? Actually, the opposite is true. Arizona prevailed unanimously on the first appeal, the Arizona Supreme Court denied certiorari (i.e., chose not to hear the case), so for Arizona to drop its defense now would have been insane. Also, as the editors later obliquely admit, the M’Naughton defnese has not been on Arizona’s books since 1843; it’s been off them since 1993. When that defense first found its way onto the books is not immediately obvious, but one thing is obvious: it wasn’t 1843, when Arizona belonged to Mexico.

The court should refuse.

Translated: the Court should affirm that time-honored, double-secret Executing Crazy People Amendment, which was ratified in 1843, but was inexplicably codified as Amendment 12 1/2. I’m sure it’s buried somewhere under Findlaw, but so far I haven’t been able to locate it. Its history is also a bit odd; while most Amendments must pass both houses of Congress by a supermajority and be ratified by a superdupermajority of the states, this one slipped thorough after being ratified by a simple majority of only one House - of the British Parliament:

In 1993, Arizona joined the list of states that tightened their insanity laws after the Hinckley acquittal. But it went to extremes. In providing for a verdict of “guilty except insane,” it removed one prong of a two-part definition of legal insanity promulgated by the British House of Lords in 1843 and incorporated in the laws of most of the United States.

Apparently, once a law is incorporated by most states, it can be amended or repealed by none, not even by those states that weren’t even U.S. territories at the time the double-secret amendment was passed. Neat.