Making Sense of the Insanity Defense

Misconceptions about the insanity plea have been so widely held at times that it's no wonder people often react passionately when it comes up in a case. Some of the most persistent misunderstandings include the belief that it is overused, that it is a defense "tactic," that most people who use it are faking, that it is often successful, and that those who succeed get off "scot-free," sauntering victoriously out of the legal system through its revolving door to emerge back out on the streets unscathed so they can pick up where they left off.

The truth is, the insanity defense is a rarely invoked plea in the United States. Even though there are only 5 states that do not allow the insanity plea, research finds it is used in less than .5 percent of felony cases. Only about 26 percent of these are successful.

As a defense "tactic" the insanity plea can't be considered especially brilliant. Although technically not a guilty plea, it requires admitting to the act in question, which rules out any later not-guilty plea. And those who are "successful" do not end up on the street. More than 95 percent of those who are found not guilty by reason of insanity (NGRI) are immediately detained in secure mental facilities. Far from getting off scot-free, they remain detained significantly longer than their counterparts in the justice system, doing anywhere from twice as much time up to nine times as much as those who are committed to a regular prison for the same crime. The advantage, if there is one? Presumably they will be getting the mental health intervention they need while they are locked up.

Despite these facts, many see this plea as a modern invention by "bleeding-hearts" who want to excuse people from taking responsibility for their actions. Modern? Not quite. Even ancient civilizations allowed for the idea of a criminal responsibility defense, and this has carried forward to English law, the basis for American courts. The idea was to come up with a humane response to those who had no more understanding than an animal of what they had done wrong. Because this is the aim, the requirements for proving insanity are far more restrictive than most people believe. Only certain extreme mental states qualify for finding someone incapable of understanding his or her actions.

The specific legal criteria for the insanitiy plea has evolved slightly over the centuries, but in the United States it has been governed by a succession of rulings which have varied in their emphasis more than in their overall requirements. The courts know them as the M’Naughten Test, the Durham Rule, the American Law Institute (A.L.I.) Standard, and finally the Insanity Defense Reform Act.

The first of these, the M’Naghten test, dates to England in 1843 and was an attempt to tighten up the existing ruling of the time, making it more restrictive. It held that the accused must be “laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” This test was criticized for its narrow rigidity because it focused only on cognitive dysfunction.  Later, in the U.S., the “irresistible impulse” rule was added to the M’Naghten test. This held that those who could not control their behavior at the time of the offense were also not culpable for their crimes. This test was also criticized, however, for being too broad. This led to a series of attempts to improve upon it: From Durham v. United States, which simply said that “an accused is not criminally responsible if his unlawful act was the product of mental disease or defect” to various other guidelines culled from case law, hospital policy, and legal institutions.

After years of legal see-sawing, the American Bar Association (ABA) proposed a standard which was later adopted in a narrow form by the United States Congress. The adopted form required “that the offender demonstrate a ‘severe’ mental disease or defect that caused the offender to be ‘unable’—an improvement on ‘substantially unable’—to appreciate the wrongfulness of the criminal act.”

Much like McNaghten, this is a cognitive test. It avoids the potential pitfalls often believed to be inherent in a volition test, however it exchanges a “knowledge” of wrongfulness for an “appreciation” of wrongfulness, which is viewed as more flexible.

Then, in 1984 John Hinckley's NGRI "acquittal" for his assassination attempt on Reagan caused a public uproar (incidentally, he is still an inmate at St. Elizabeth's Hospital, a Federal psychiatric facility in Washington D.C.). The public outrage over the nature of his incarceration led to the Insanity Defense Reform Act, which has since been the governing standard for all Federal cases in the U.S. It places the burden of proof for insanity on the defendant and fine-tunes issues such as the scope of expert testimony and issues related to the commitment process for those found insane.

Of course, individual states vary in their application and emphasis on these principles. As a case in point, California identifies some cognitive impairments that cannot be used in an insanity defense. Mental issues such as personality disorders, adjustment disorders, seizure disorders and substance abuse and addiction are all ineligible for consideration as a basis for NGRI. But there is a caveat to this. Although these disorders aren't recognized as justification for NGRI per se, California has in some cases allowed for a connection between disorders like these and justifiable defense if the impact of these disorders are “settled” or “permanent.” (See the specific wording of the California standard.)

Clearly, the standards and tests that have been devised to allow for this defense are not infallible. But then, juries rarely apply them anyway. Rather, research shows that jurors tend to decide insanity cases based on gut feelings about the right outcome, or on their attitudes toward the morality of insanity pleas.

Recognizing this, some states now allow an alternative verdict of “guilty but mentally ill" (GBMI), which gives juries the opportunity to reconcile the desire to hold the defendant responsible with the belief that he or she needs treatment. Whether it is an improvement over the NGRI plea, however, is yet to be seen and remains a topic of heated debate. One of the most pressing problems to be overcome is that many of those who are found GBMI end up incarcerated in the same facilities as the general population, where only limited treatment services are available. This is where we find the revolving door: after time has been served in a regular prison they must be released (unlike psychiatric incarcerations, which can be extended indefinitely)—and release means being consigned to the same life, with the same people in the same environment that contributed to the problem in the first place.

In recent years, neuroscientists, neurobiologists, and others who study brain function have turned up findings that provoke some interesting questions about our attitudes toward incarceration and rehabilitation, and there are no easy answers. Nevertheless, if we accept the research that proves undeniably that the brain's wiring is malleable even into adulthood, we have some important questions to ask ourselves as a society: Do we believe that people can continue to change their behaviors and even aspects of their personality over their lifetime? Do we believe we will benefit most by helping "weak links" in society's chain to become healthy ones? If we do, can we find it within ourselves to offer the tools for them to do so?

GINA STEPP

December 1, 2010

SELECTED REFERENCES:
1 Daftary-Kapur, T., Groscup, J. L., O'Connor, M., Coffaro, F., & Galietta, M. (2011). Measuring knowledge of the insanity defense: Scale construction and validation.Behavioral Sciences & The Law, 29(1), 40-63. 2 Robinson, D. (1998). Wild beasts and idle humours: The insanity defense from antiquity to the present. Cambridge: Harvard University Press. 3 Simon, R., & Aaronson, D. (1988). The insanity defense: A critical assessment of law and policy in the postHinckley era. Westport, CT: Praeger. 4 Williams, Christopher R. "Not Guilty By Reason of Insanity (NGRI)." Encyclopedia of Murder and Violent Crime. Ed. . Thousand Oaks, CA: SAGE, 2003. 330-32. SAGE Reference Online. Web. 6 Aug. 2012.