The Statute America Declined to Write

The question on the verdict form is narrow. On January 24, 2023, in Duxbury, Massachusetts, Lindsay Clancy killed her three children — Cora, five; Dawson, three; Callan, eight months old — and then went out a second-story window. She survived, paralyzed, and has attended her own trial in a wheelchair. She was a labor and delivery nurse. Nobody disputes what she did. The only contested question is whether the Commonwealth can prove, beyond a reasonable doubt, that she was criminally responsible when she did it.

That is the entire question. It is one woman, one night, one statutory test.

The question in the gallery is a different question. On Thursday, August 20, hundreds of people — overwhelmingly women, a number of them in pink — assembled outside the courthouse. Renee Kimball drove down from Maine and had asked people on social media to come "stand in peace for Lindsay." April Vincent, fifty-two, a paralegal, told reporters: "Women are being dismissed, neglected and ignored when we speak up. We're scared because nobody takes us seriously." Twin sisters from Worcester drove over an hour to sit in a courtroom where they knew nobody.

None of them came to offer an opinion on whether the Commonwealth met its burden under Commonwealth v. McHoul. They came about something else. The something else does not have a docket number, and the American legal system has spent a century declining to give it one.

The Best Available Ground

It is worth being precise about how favorable this legal terrain actually is, because the deadlock means something different depending on the answer.

Massachusetts is among the most defendant-friendly insanity jurisdictions in the United States. Under the McHoul standard, a defendant is not criminally responsible if, at the time of the offense, a mental disease or defect left her without substantial capacity either to appreciate the wrongfulness of her conduct or to conform her conduct to the requirements of law. That second clause — the volitional prong — was stripped out of federal law by the Insanity Defense Reform Act of 1984 after John Hinckley, and stripped out of many state codes in the same wave. Massachusetts kept it.

Massachusetts also puts the burden on the government. Once lack of criminal responsibility is properly raised, the Commonwealth must prove sanity beyond a reasonable doubt, alongside the elements of the offense. If jurors have a reasonable doubt about criminal responsibility, the instruction tells them they must acquit on that ground. In most states, the defendant carries that burden. In Kansas, Montana, Idaho, and Utah, there is no insanity defense to carry at all — an arrangement the Supreme Court upheld in Kahler v. Kansas in 2020. Had this happened three states west, there would be nothing to deliberate about.

So: the most generous standard in the country, the burden on the prosecution, the highest burden of proof the law knows, a defendant with no criminal history, over seventy prosecution witnesses across three weeks who established a fact nobody was contesting, and a documented clinical trail. And four days in, the jury cannot get to a verdict at all.

The trail is not ambiguous. In the months before January 2023, Clancy was prescribed a rotating pharmacy — benzodiazepines, trazodone, Zoloft, Valium, Seroquel, Remeron. A provider recorded suicidal ideation without a specific plan. Another floated a possible mood disorder, "underlying bipolar disorder." Nobody wrote down postpartum psychosis. Dr. Veerle Bergink, who has no role in the case, described the presentation to NPR as "a classical, typical story of a woman with postpartum psychosis not being diagnosed, not being treated."

Postpartum psychosis occurs in roughly one to two births per thousand. That is more common in the United States than sudden infant death syndrome, a condition every new parent in the country has been briefed on by a hospital, a pediatrician, and a package insert.

A hung jury is thin evidence, though, and it should be handled carefully rather than swung. There are ordinary explanations available and the piece that follows does not get to skip them. Prosecution experts contested volitional incapacity, and jurors could reasonably have split on the psychiatric testimony. It may be one holdout. Or — the plainest reading, and the least convenient one — three dead children make jurors resist a verdict shaped like an acquittal no matter how the instruction reads, in which case the trouble is with the jury and not with the routing.

That last explanation deserves a full stop, because it does not damage the argument so much as change its vocabulary. If a jury cannot deliver a lawful verdict because the facts are unbearable, then a statute that takes the question away from the jury is not performing neutral routing. It is performing mercy, and administering it by category so that twelve people never have to. What follows calls this a routing problem. It is worth admitting up front that routing may be the polite name for something else.

And the verdict, whenever it lands, will not settle any of it. If the jury returns not guilty by reason of insanity tomorrow, the standard will have worked — at a cost of three and a half years, a three-week trial, seventy-odd witnesses, and four days of twelve people unable to speak. If it convicts, the standard will have failed on the most favorable terms the country offers. Both outcomes describe an instrument that is expensive and unreliable for this particular job.

The Statute Nobody Here Had to Reject

Britain answered a version of this in 1922, revised it in 1938, and has not seriously reopened the question since.

The Infanticide Act creates a separate offense. A woman who kills her child under twelve months old, at a time when the balance of her mind was disturbed by the effects of birth or lactation, is guilty of infanticide rather than murder. The disturbance is presumed rather than litigated. Sentencing runs toward commitment and treatment rather than life imprisonment. Canada codified the same category in section 233 of its Criminal Code. Australia adopted versions, some extending to two years postpartum. New Zealand's window runs to ten years. Japan, Brazil, Sweden — roughly two dozen countries have something in the family, most of them modeled on the British text.

Now the thing that has to be said before anything is built on top of it: that statute would not have covered this case.

Cora was five. Dawson was three. The Infanticide Act reaches a child under twelve months, and Canada's section 233 draws the same line. Under the statute America declined to write, exactly one of the three deaths in Duxbury routes out of murder. The Plymouth trial happens anyway — the same expert duel about the same night, on two counts instead of three. The wider windows are not decoration on the model. Australia's two years and New Zealand's ten are the argument the model has been having with itself for a hundred years.

Which is the more useful finding, and it cuts harder than the tidy version would have. The twelve-month line is not a clinical boundary. It is an artifact of the 1922 rationale — lactation, the puerperal body, a biological clock that was supposed to run down on schedule. Medicine abandoned that theory decades ago. The line stayed. Every jurisdiction that adopted the category has since had to fight about where the edge belongs, and they have landed on twelve months, twenty-four months, ten years, which is a spread wide enough to concede that nobody knows.

The United States has never had that fight. Not because it was settled here, and not because the American answer came out at twelve months or twenty-four or none. Because there is no category to draw an edge around. A country with an infanticide statute has a century of contested law about how long the disturbance lasts and whom it reaches. A country without one has a century of nothing, and every case arrives as though it were the first.

What the infanticide statutes do, on the counts they reach, is not primarily mercy. It is routing. They convert a contested question of individual psychiatric fact into a question of category membership: was there a birth, was the child inside the window, was there disturbance. Twelve laypeople in Plymouth are currently refereeing a duel between expert witnesses about the interior state of a woman's mind on a night three and a half years ago. Under an infanticide statute, on the count that qualifies, that duel does not happen, because nothing turns on it.

What the Bargain Costs

The statute has real critics and they are not frivolous. It is explicitly gendered — a father in identical crisis gets nothing. Its founding rationale rested on "lactational insanity," a theory medicine discarded long ago, and the modern justification has had to be retrofitted onto social and psychiatric ground the drafters never contemplated. Some argue it is paternalistic in a way that insults the women it protects.

Take that last objection seriously and the American absence stops looking like a hole and starts looking like a position.

An infanticide statute is a bargain. It buys categorical mercy at a fixed price: a standing legal declaration that a woman's mind is disturbed by the fact of having given birth. Presumed, not litigated — and a presumption runs in whatever direction the party holding it finds useful. Britain got a woman out of the murder channel by writing into law that she was not fully in possession of herself. That is a purchase. Somebody pays for it who is not in the courtroom.

It is at least arguable that no American legislature wrote this statute because the traditions that would have had to sponsor it — the feminist one above all — declined to buy leniency with a formal finding of female incapacity. That is a coherent position. It has real costs, and the costs are sitting in a wheelchair in Plymouth Superior Court. But it is a position rather than a vacancy, and it is the harder thing to argue against.

It also lands directly on top of the crowd outside. The women on that lawn are asking to be believed. Credited. Heard when they say the thing at the appointment and it gets written down as anxiety. The statute that would have helped Lindsay Clancy is a statute that stops asking them anything — that decides in advance, by category, that what a woman has to say about her own mind is not the operative question. Both of those are demands for relief. They do not point the same direction. Nobody standing on that lawn in August had any obligation to reconcile them, and the country has spent a hundred years not reconciling them either.

The absence repeats one level down, and there the mechanism is not mysterious at all. Postpartum psychosis is not a standalone diagnosis in the DSM. It is a specifier — a modifier appended to brief psychotic disorder or bipolar disorder. No independent code. That sounds like a taxonomy problem and it is a money problem. No code means no clean reimbursement line. No reimbursement means no market for a screening instrument. No screening market means no protocol, and no protocol means no obstetric practice in the country has a step in its workflow where somebody is required to ask the question. The law has no category and the billing system has no category, and those are not two absences that rhyme. They are one absence with a revenue explanation.

Twenty-Five Years, One Pamphlet

The gallery in Plymouth is not the first gallery.

On June 20, 2001, in Houston, Andrea Yates drowned her five children in a bathtub. She had been hospitalized, medicated, taken off medication, and told by a psychiatrist she had to think her own thoughts. In March 2002 a Texas jury convicted her of capital murder and she got life. In January 2005 an appellate court threw the conviction out because a prosecution expert had testified to an episode of Law & Order that did not exist. She was retried in July 2006 and found not guilty by reason of insanity. Five years, two trials, one reversal, and the outcome finally arrived at a place the medical evidence had been pointing at from the first week.

Then came the structural response, which is the part worth measuring. Texas passed a law requiring that new mothers receive information about postpartum depression. New Jersey, in 2006, became the first state to mandate postpartum depression screening, pushed by a governor whose wife had lived it. A handful of states followed with screening requirements. That is the legislative yield of the most notorious maternal filicide case in American history: a pamphlet, a checkbox at a six-week visit, and no change whatsoever to how the next case would be tried.

Note which condition the screening reaches. Depression has its own DSM entry, its own code, its own validated instrument. Psychosis, one level down, does not — so the protocols built in Yates's name catch the condition with a billing line and miss the condition without one. The screening did not fail. It was aimed at what the payment system could see.

The treatment side moved, and it moved in exactly the same shape. In March 2019 the FDA approved brexanolone, the first drug indicated for postpartum depression — administered as a sixty-hour continuous intravenous infusion, in a certified facility, under continuous monitoring, at a list price around thirty-four thousand dollars. A new mother, in the acute phase, was invited to check into a hospital for two and a half days. In August 2023 an oral version was approved, a fourteen-day course, which is a genuine advance and which arrived seven months after the night in Duxbury.

The molecules show up. The delivery environment does not, and it does not for the same reason the screening protocol does not: nobody gets paid to build it. Capability arrives, the system that would have to move people to it is never funded, and the capability sits in the literature while the case law fills up with people who never reached it.

What Has No Defendant

Set the pattern out flat.

The clinical entity is well characterized and has been for a century. The incidence is known. The window is known — the first weeks postpartum, and everyone in obstetrics knows it. Two dozen countries built a legal category around it and have spent a hundred years arguing about its edges. The United States built nothing, and therefore has no edges to argue about, and instead runs these cases through an insanity defense that most states have narrowed, four have abolished, and one — Massachusetts — has kept generous enough that a jury there has now spent four days unable to reach any verdict at all, on the most favorable terms the American system offers.

That deadlock is not a failure of the jurors. Twelve people were handed a scalpel and asked to move a building.

And the women outside understood the shape of it better than most of the coverage did. They were not there because they believe Lindsay Clancy is innocent in any ordinary sense; several said plainly that three children are dead. They were there because they recognize the sequence — the appointment where you say the thing and it goes in the chart as anxiety, the prescription swapped for another prescription, the discharge instruction to follow up. "That could be any one of us," the organizer said. What she means is that the failure was environmental, distributed, and unowned. She is right. There is no way to say it inside a courtroom.

So here is the question that is not on the form.

In the months before that January, someone sat across from Lindsay Clancy and wrote down "underlying bipolar disorder" — floated it, considered it, put it in the record — and then moved on to the next appointment, because the next appointment was what the schedule said. That person is almost certainly not a villain. That person had fifteen minutes, no validated screening instrument for the condition actually in the room, no billing code that would have paid for one, no protocol saying ask the following four questions before this patient leaves, and a nearby diagnosis that fit well enough to write down.

They will not be called. They have not been served. There is no cause of action and no docket number, and no way to raise any of it inside a courtroom, because a courtroom is a machine for locating a single responsible party and it has already located one. She is in the wheelchair.