Does the Insanity Defense have a Legitimate Role?

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Does the Insanity Defense have a Legitimate Role?

Magazine article

By: James F. Hooper and Alix M. McLearen

Date: April 2002

Source: Hooper, James F., and Alix M. McLearen. "Does the Insanity Defense Have a Legitimate Role?" Psychiatric Times 39 (April 2002). Available online at: 〈http://www.psychiatrictimes.com〉.

About the Author: Dr. James Hooper is a forensic psychiatrist. He is the medical director of the Taylor Hardin Secure Medical Facility and a professor at the University of Alabama. Ms. McLearen was a doctoral candidate in the clinical psychology-law program at University of Alabama when this article was written.

INTRODUCTION

Mental illness can lead to involvement in crime and many individuals in prison have a mental health problem for which they may not be receiving appropriate treatment. The forensic psychiatrist, working within the justice system, has an important role in ensuring that "insanity" on the part of the defendant is correctly identified and assessed. Once judgement has been handed down, consideration must be given to whether prison or a hospital is the most appropriate destination for the accused (if guilty) and what treatment should be given. Only then can the mentally ill individual be properly helped and society protected from further crimes.

Isaac Ray was the founding father of forensic psychiatry in the United States and his book Treatise on the Medical Jurisprudence of Insanity, published in 1838, helped to shape the profession. Ray's opinions influenced many judges and he developed treatments for the criminally insane at his hospital in Rhode Island. The use of psychiatry within the criminal justice system increased during the 1960s and 1970s. In the article below, a leading forensic psychiatrist discusses the modern view of the insanity defense and how it arose.

PRIMARY SOURCE

Public perceptions are that the insanity defense occurs far more commonly than records indicate. In fact, the insanity defense is used in less than 1% of criminal proceedings and is successful in approximately one-quarter of those cases. Furthermore, defendants who are found insane spend as much, or more, time in state custody than their criminally convicted counterparts. The media may foster the notion that criminals get away with feigning mental defect, only to be released and recidivate. However, the insanity plea is actually based on a longstanding legal tradition and is rarely successfully completed. In fact, approximately 70% of insanity acquittals result from agreements between opposing attorneys, in which the prosecution agrees that society would be better served by placing the defendant in treatment, rather than in prison (Blum, 1992; Bogenberger et al., 1987; Cirincione, 1996; Rogers et al., 1984; Smith and Hall, 1982).

Outside of assisting in sentencing, there are two places for mental disease in the legal system. The first is a defendant's ability to understand the trial process. People who do not understand the nature of the charges or the functioning of the legal system are considered unfit for trial. More germane to this article, if mental illness had a direct effect on a given criminal act, an individual can be found legally insane.

Harvard Law School professor Sheldon Glueck stated in 1927, "Perhaps in no other field of American law is there so much disagreement as to fundamentals and so many contradictory decisions in the same jurisdictions." The concept of insanity has changed over time and locale, but the basic notion of this defense is that some individuals, by reason of mental condition, are not capable of controlling or understanding their own unlawful behavior. However, the presence of a mental illness or other condition does not automatically predict a successful insanity finding.

A great historical pendulum swings between protective and punitive laws. In the normal course of events, laws slowly evolve to allow more and more efforts to treat those mentally ill offenders who can be safely removed from the prison population. Eventually, a psychotic individual commits a highly publicized crime, usually an assassination, and the lawmakers throw up their hands over "doctors dictating the law" and "getting criminals off the hook."

This happened in England in 1841, when the Prime Minister's secretary was killed by a delusional wood-turner from Scotland named Daniel M'Naughten. In this landmark mental health case, the defendant was found not guilty by reason of insanity (NGRI), and the Queen demanded an appellate ruling, resulting in the very strict"M'Naughten Rules" in 1843. These essentially said a person could be found insane if, at the specific time of a crime, they were unable to know the difference between right and wrong. This is known as a "knowledge-only" based test, with no room for uncontrollable impulses.

In the United States, this definition was considered by the courts but was seen as too restrictive. Instead, the American judiciary took a slightly different tack. For example, in Parsons v Alabama (1886), the State Supreme Court opined that a person was NGRI if they had lost "free agency" as a result of mental disease. This would allow an insanity defense if a person knew an act was illegal, but could not control their behavior.

Later, the American Law Institute (ALI) promulgated a Model Penal Code that included a two-pronged provision for insanity. Specifically, an individual is "not responsible for criminal conduct if, at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law." It is important to note the or, allowing either knowledge or impulse to be a basis for insanity. By the 1970s, most states had adopted these rules.

In 1981, President Ronald Reagan was shot by John Hinckley. Hinckley had incorporated scenes from a popular movie (Taxi Driver) into his delusional system and was attempting to gain the love of a famous actress (Jodie Foster). He was found NGRI under the impulse control part of the ALI law, which led to hospitalization rather than imprisonment. Immediately, the federal government, and many states, tightened the insanity laws back to those of 1843 England.

CURRENT LEGAL REQUIREMENTS

Currently, the requirements for insanity vary by state. The typical standards require that a person be unable to differentiate between right and wrong at the time of the crime. The inability to appreciate the wrongfulness of conduct must be the direct result of a mental disease or defect. Such defects typically include psychotic disorders, mood disorders and organic conditions such as mental retardation. Virtually no state allows sociopathy to be grounds for an NGRI defense, and voluntary intoxication cannot by itself end culpability. Only a few states still contain the volitional question.

At the federal level, the Supreme Court, in USC Title 18, Chap 1, Sec 17, stated:

It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

Some states have another legal option aside from insanity: guilty but mentally ill (GBMI). On its face, this seems to be a good idea, as jurors have several options. However, there are two inherent problems. First, juries have two choices that find a person guilty, but only one that finds them innocent, leading away from giving the benefit of doubt to the defendant. Additionally, the GBMI finding assumes that prisons will engage in the same level of treatment as a hospital, so that a defendant can be equally well-served in either setting. A GBMI finding also yields a set sentence, which the person will serve even if completely psychiatrically stabilized. Alternatively, the defendant may have to be released even if they are still ill.

LOOPHOLES AND PITFALLS

The existence of an insanity defense has always been controversial. There have been several attempts to "eliminate the loophole" and thereby force mentally ill individuals into prison. Several state decisions have noted that criminal intent is an absolutely necessary part of any crime. In recent years, some states have redefined their laws to focus more tightly on the mens rea, or guilty mind. Under those laws, a person must, as a result of a mental illness, lack the ability to willingly or knowingly commit an act. This looks at criminal intent, rather than psychiatric diagnoses, therefore claiming an end to criminals getting off free.

Of course, as previously noted, the truth is that there is no evidence to suggest that this defense has ever been widely misused. A minority of states (Montana, Idaho, Utah, Kansas and Nevada) have omitted the insanity defense per se entirely, instead allowing mental state to be raised only as a mitigating factor.

Some people favor the abolition of the insanity defense for reasons unrelated to political gain. They argue that far too often (certainly in our experience) a person who is chronically mentally ill is automatically found NGRI, even when the evidence would not convict them of a crime (Halpern, 1992). In addition, some critics see it as a simple plea bargain that saves time for the lawyers and judges and locks up a possibly innocent person for many years.

We would argue that in the absence of laws to force hospitalization of mentally ill offenders, many would go to prison and be victimized. This goes against all historical and humane thinking that some people truly cannot be held to general standards of conduct because of mental conditions over which they have no control.

BURDEN OF PROOF

Defining the burden of proof presents another issue in the insanity defense. Who has to prove what and how do they prove it? Since the average citizen is presumed to be sane, if they claim insanity, who decides? Does the prosecution have to prove defendants are not insane, or do the people who ask the court to find them not guilty by reason of insanity have to justify themselves? Most states have gone with the latter, but it certainly has not always been that way. In the aftermath of the Hinckley case, many states shifted the burden of proof to the defendant.

There has also been discussion on the amount of proof required. Should insanity be proved only by 51% (e.g., a preponderance of evidence), or does it need a standard of "beyond a reasonable doubt"? Generally, laws give the benefit to the accused and logically would not require more than the preponderance standard. This issue was addressed when, in State v Coffman (1864), California was the first jurisdiction to review M'Naughten officially. Soon after, in 1879, the Alabama Supreme Court, in Boswell v State, rendered an opinion that we see as holding to the spirit of the original insanity laws and which, in our opinion, reads well:

Since an unsound mind cannot form a criminal intent, insanity, when proved, is a complete defense, but no defense is more easily simulated, and the evidence must therefore be carefully and considerably scanned. The workings of a diseased mind are so variant that it is difficult to lay down an absolute rule for the government of all cases. Each case must depend, more or less, on its own particular facts. It ought to be proved that at the time he committed the act, he did not consider it a crime against the laws of God and nature. If there is any reasonable doubt as to sanity, the jury should acquit him.

CONCLUDING THOUGHTS

Currently, insanity is a well-established defense in this country. Although efforts to eliminate this way of escaping punishment will continue to generate attention, it is unlikely that our laws will eliminate the essential difference between those who choose to break the law and those who cannot choose.

SIGNIFICANCE

A number of mental conditions can lead to involvement in crime and, in these cases, the perpetrators genuinely may not appreciate that their actions are wrong. People with schizophrenia—especially paranoid schizophrenia—may hear voices that tell them to commit a crime. This was the defense mounted by the Yorkshire Ripper, serial killer Peter Sutcliffe, who murdered thirteen women (several of them prostitutes) in the north of England in the late 1970s. At his trial in 1981, he claimed that the voice of God had told him to cleanse the streets of prostitutes. However, the prosecution argued that Sutcliffe was not mentally ill—but had learned to mimic schizophrenia from his wife, Sonia, who was. A skilled forensic psychiatrist should be able to tell when someone is feigning mental illness in this way, but, of course, the expert witnesses for prosecution and defense may disagree on the diagnosis.

There have been several well-publicized cases in which people with schizophrenia have been released from jail and have committed additional violent crimes. This is especially likely when they stop taking medication or escape regular medical supervision. Although a schizophrenic in the grip of delusions can kill and be judged legally insane, the vast majority of people with this mental illness are harmless. They are far more likely to hurt themselves than anyone else. There are also effective treatment programs, mainly medication-based, for schizophrenics.

More rarely, an individual with a dissociative identity disorder will commit a crime they are genuinely unaware of. A number of different personalities can co-exist within the mind of a single person and one can "act out" without there being any awareness of his or her behavior on the part of the other personalities. These are difficult cases, but treatment can, eventually, integrate the personalities and restore the individual to mental health.

Perhaps the most difficult dilemma is posed by the perpetrator with anti-social personality disorder (ASP, also known as psychopathy). A significant proportion of all crime is committed by individuals with ASP because one of the hallmarks of this condition is an inability to feel guilt or remorse. Brain imaging and physiological studies have shown that ASP is also linked to a lower than usual level of arousal, so individuals may be able to commit crimes of violence without the feelings of revulsion that most people would feel. However, there is still debate over whether the person with ASP is "mad" or "bad"; there also is no successful treatment for the condition at the present time. Therefore, many people with ASP end up in prison and, once released, go on to commit more crimes.

Another increasingly important issue is the role of drugs and alcohol in crime. Both prescription and illegal drugs can affect memory and behavior. Some claim that fluoxetine—the antidepressant Prozac—can trigger violent behavior, and the role of alcohol in releasing aggression is well known. Many suspects who were "high" on cocaine claim to have no memory of committing a crime. The forensic psychiatrist must assess whether substance or alcohol abuse rendered the person legally "insane" at the time of the crime.

The psychiatric examination consists of formal questioning, medical tests such as magnetic resonance imaging, blood tests and X-rays to assess any brain damage, neuropsychology tests, and the assessment of medical records. The psychiatrist will judge the defendant's state of mind at the time of the crime and at the time of the trial to see if he or she is competent to understand the proceedings. Mentally ill offenders are not usually detained for life and, perhaps, the most difficult role of the psychiatrist is to assess if and when they are no longer a danger to the public. Premature release, especially without supervision, can put innocent people at risk. Excessive detention, however, is an affront to the liberty of the individual, if he or she has served his or her sentence.

FURTHER RESOURCES

Books

James, Stuart H., and Jon J. Nordy, eds. Forensic Science: An Introduction to Scientific and Investigative Techniques. Boca Raton, Fla.: CRC Press, 2003.