The mentally insane, criminal non-­accountable but culpable perpetrator: Oxymoron or reasonable character?
The proposal for a new Penal Code provides that an mentally insane perpetrator remains culpable for a crime committed. This is a break with the current criminal law in which this criminal non­accountable perpetrator is not conceived culpable. Successful appeal to ‘mental disorder’ (art. 71) relieves him of his criminal guilt. In this contribution I try to understand this remarkable evolution with the help of the compatibilist philosophy of guilt, culpability, blame, and moral responsibility. More precisely, I use the counterargument of Harry Frankfurt and the model of Fischer and Ravizza who argue that culpability can be disconnected from ‘guilt as avoidability’ and can be built upon ‘guilt as a mental state’. While this compatibilist solution may seem attractive for those who accept causal determinism, it cannot be defended as it creates new conceptual problems and cannot be accepted by those who argue that ‘guilt as avoidability’ remains essential for any guilt-­driven penal system.