2009] 587 THE INSANITY OF GENIUS: CRIMINAL CULPABILITY AND RIGHT-TAIL PSYCHOMETRICS J.C. Oleson * “[A]s a brute has no vice or virtue, so neither has a god; his state is higher than virtue, and that of a brute is a different kind of state from vice.” 1 INTRODUCTION ents, merely constructs of his parents; his defense attorney is an archangel. Suppose that on the day after Christmas, a man “goes postal” and kills seven victims in a workplace massacre. 2 Now suppose that at trial, the man pleads not guilty by reason of insanity, and recounts a fantastic story, claim- ing that he had been selected by the Archangel Michael to travel back in time, kill Hitler, and avert the Holocaust. Suppose that he tells the court that (after receiving three signs from Heaven) he was blown through a time por- tal to Berlin, 1940, and that the individuals he killed were not coworkers, but Hitler and six high-ranking Nazi officials. In exchange for saving tens of millions of lives, he claims, he was given a soul. Suppose that the man tells the court that after his mission, he died in a German police station and was now in Purgatory. The judge and the jurors in the courtroom, he claims, are automatons or demons; his parents, seated in the front row of the gal- lery, are not really his par * Chief Counsel, Criminal Law Policy Staff, Administrative Office of the United States Courts; J.D., School of Law, University of California, Berkeley (Boalt Hall), 2001; Ph.D., University of Cam- bridge, 1998; M. Phil., University of Cambridge, 1995; B.A., Saint Mary’s College of California, 1994. I am indebted to David Farrington, Adrian Grounds, Hans Eysenck, Joshua Dressler, and Sanford Kadish for helping me consider the complexities of criminal genius. For their suggestions on the manu- script, I am also grateful to Emery Lee, Alana Quinn, and Karen Redmond. The editorial suggestions from the staff of the George Mason Law Review were very helpful, and I am particularly grateful to Elizabeth Bahr for shepherding the piece through their process and to Diane Taing and her team for outstanding work on the references. The views contained in this Article are entirely the author’s own, and do not necessarily reflect the position of the Administrative Office or the federal judiciary. 1 ARISTOTLE, Nicomachean Ethics, in THE BASIC WORKS OF ARISTOTLE 927, 1037 (Richard McKeon ed., W.D. Ross trans., 1941). 2 All of these facts are drawn from the case of Michael McDermott. See Commonwealth v. McDermott, 864 N.E.2d 471, 475-82 (Mass. 2007); Court TV News, Workplace Massacre Insanity Trial, http://www.courttv.com/trials/mcdermott/ (last visited Jan. 22, 2009) (briefly describing facts and offering links to CourtTV.com’s coverage of the case). They are presented as a hypothetical because Massachusetts is a jurisdiction without capital punishment and this Article focuses in large part upon the Supreme Court’s capital jurisprudence.