I probably have very different feelings about this than most of you do, but it horrifies me that people and lawmakers in the United States have essentially decided that because some people might fake insanity to get out of responsibility for a crime, we should have a de facto elimination of the defense. Remember that I'm talking about the insanity defense here, not the I didn't feel good that day defense or the I ate too many Twinkies defense, because they are different things.

What are your thoughts?

-- Anonymous, January 26, 2001

Answers

This man is obviously insane; if he were drugged into competency for trial now, he still would have been insane when he committed the murders; therefore he should be found not guilty by reason of insanity.

But I understand from the Post article that another man obviously bonkers was found by a jury not to be and sentenced to 25 years, so that blows my idea that he could stand trial as competent human but not punished for acts he committed in his incompetency, because if he were competent at trial a jury could assume the insanity was just an act.

*If* he stayed on massive drugs and remained competent and never committed a crime as a competent human, should he in his competent state be imprisoned for acts of his body not his mind? This is much too tangled an issue for me to try to tackle.

So no. I have no insightful solution.

-- Anonymous, January 26, 2001

You're right, it is awfully tangled. The law generally holds that you can't punish someone for an act committed while the person was actually insane. (The definition of insanity varies somewhat depending on jurisdiction, but let's say for purposes of argument that the insane person truly did not understand the nature of the act -- like, I didn't realize this thing in my hand was a gun or that you were a person. That level of insanity.) But to be fair, I think the public has a somewhat justifiable lack of trust in psychiatry, so we don't want to trust doctors to determine when and whether the person is safe to be let out on the streets. And the only way to avoid that scenario is for juries to reject the insanity defense even when it's clearly supported by the facts.

It's a tough issue, and I refuse to believe that the only solution is to lock severely mentally ill people into prisons.

-- Anonymous, January 26, 2001

I don't have a problem with the insanity defense in itself. It's that it gets used these days for all those I didn't feel good that day situations, as in the case of the famous Twinkie defense.

If someone is crazy in the M'Naughton sense - he'd shoot someone even if a policeman was standing next to him - that person probably doesn't belong in prison. But he shouldn't be out on the streets, either.

I've heard they do it differently in England in a way that makes more sense: they find the defendent guilty or innocent based on the act, without insanity being allowed as a defense. No "innocent by reason of insanity." But then the judge is supposed to sentence the person based on whether they're sane: regular prison or Broadmoor. I'm sure it gets abused too, but at least it seems to make more sense.

-- Anonymous, January 26, 2001

I thought Beth was just funning--you mean there was a Twinkie defense? Let me go look that up.

-- Anonymous, January 26, 2001

Well, there was, but it wasn't really all that recent, and it had nothing to do with insanity ... that was the old "diminished capacity" defense, which is no longer available in California. The term is used as a description for Dan White's defense after he killed Harvey Milk and George Moscone. Except there really was no "Twinkie defense;" it's an urban legend. What the defense actually claimed was that White's untreated depression led to diminished capacity, and as evidence of his depression, they introduced testimony that he had previously been very health-conscious, but had been eating junk food. It was just one piece of evidence used to show an overall psychological change.

But all the media outlets got it wrong (imagine that) and reported that the defense was saying sugar made him crazy.

He wasn't acquitted, by the way; he was convicted of voluntary manslaughter.

Snopes has the story here.

-- Anonymous, January 26, 2001

Dan White may not have used the "insanity defense" per se, but it seems that the jury did consider the fact that he was suffering from depression as a mitigating factor. It's the only explanation I can see as to how they could choose to convict him of manslaughter instead of murder, when the evidence clearly showed premeditation on White's part.

As it turned out, it seems that Dan White truly was suffering from depression--he killed himself right after serving his jail term.

Anyway, I know this isn't exactly what you set out to talk about, Beth, but I think it does need to be considered how one determines to what extent someone's judgement is impaired by mental illness. Even for psychiatrists, it is not possible to determine with great certainty exactly how impaired someone is with respect to understanding the difference between right and wrong. Even a defendant who appears extremely delusional may not necessarily have lost his sense of right and wrong--I suspect that if this were the case, there would be a lot more crime involving untreated schizophrenics. Neither do we have any objective way to determine that someone like Dan White, who had a less symptomatic form of mental illness, understood what he was doing when he shot Milk and Moscone.

This is why in most cases involving a mental illness defense, both sides usually call psychiatrists as expert witnesses. Since both sides will nearly always be able to present "experts," this leaves the jury ultimately responsible for making a determination about the defendant's mental health, which is something they're not qualified to do.

I don't know much about exactly how the legal system works on this issue, but it seems that a better solution would be to have mental- health cases go to a team of psychiatrists first. Then, if the person was found by the psychiatrists to have been "sane" at the time of the crime, the defendant would be tried in criminal court. Would that be unconstitutional?

-- Anonymous, January 26, 2001

I don't know if it would be constitutional. Under California law, there is a pretrial procedure for determining if a defendant is competent to stand trial, and even though that doesn't have anything to do with whether he was sane at the time of the offense, he is entitled under California law to have a jury trial on the issue of his competence. I don't know if the federal constitution requires that, or if it's just the way California does it.

Dan White may not have used the "insanity defense" per se, but it seems that the jury did consider the fact that he was suffering from depression as a mitigating factor.

He used the defense of diminished capacity, which allowed a defendant in a murder case to argue that he was not capable of premeditation. That defense was removed from California law, largely as a result of the Dan White case. In the past it was commonly used in cases in which the defendant was on drugs (you see a lot of PCP cases still on the books) to reduce their crimes from first degree murder to voluntary manslaughter.

I tend to agree that juries are not in the best position to be determining sanity, but these days I don't think the problem is that juries are too likely to find a person to have been insane. I can only think of one recent California murder case in which the defendant was found to have been insane at the time of the offense, and in that case, the defendant waived trial by jury and had his case tried before a judge.

I guess the primary problem I see with the system you propose, Jen, is how the case would wind up before that panel in the first place. Would all cases be subject to that review? If not (it seems awfully time consuming), how is the review triggered? Could either side request it, or would a judge have to make a preliminary finding?

I don't know; I don't have a fundamental problem with the idea.

In the case discussed in the article, it occurred to me that the defendant there needed a completely separate lawyer (and maybe a guardian ad litem or other representative) appointed to represent his mental health interests. His mental health interests might be completely separate from his criminal justice interests, and since he appears to be unable to speak up for himself in either realm, it bothers me that the only thing anyone is concerned about is whether he's going to face the death penalty. (Of course that also begs the question of why the federal government is spending so much money to execute someone who by all accounts is, in fact, insane.)

-- Anonymous, January 26, 2001

I guess I was thinking that the trial-by-psychiatrists would be something that the defense would request if they were planning to mount an insanity defense (and then insanity defenses wouldn't be used at all in a regular court). There would definitely be a potential for a big bureaucratic backlog, but it might be a reasonable price to pay for a system that is more fair.

-- Anonymous, January 26, 2001

Well, especially since the insanity defense is not used very often (contrary to popular belief). Mental issues come up when defendants are trying to avoid the death penalty, or in a heat-of-passion defense, but the actual insanity defense -- which results in a complete acquittal, not merely a conviction of a lesser offense or a lighter sentence -- is rarely raised.

-- Anonymous, January 26, 2001

The defense might be used more often if it were more often successful (and I suspect it would be if a panel of psychiatrists were making such decisions instead of a jury).

On a different note, I find it really interesting that the whole anti- NGRI thing basically grew out of the Hinckley verdict, but it seems to me that being found not guilty by reason of insanity, but then being involuntarily committed (undoubtedly for life) to a state mental hospital is not substantially different from being found guilty and sentenced to a lifetime prison sentence. OK, admittedly, life in a mental hospital might be a little better than what you'd experience in prison, but it's not like Hinckley really "got away" with anything.

-- Anonymous, January 26, 2001

I'll defer to Beth on this subject, but I have reservations on the insanity defense.

I have little faith in the mental health profession. It's not that mental health professionals are bad people. I suspect that the state of the art is just too primitive to be relied on.

My impression is (and that is all it is) that there in no repeatability in the mental health world, that diagnosis and treatment are based on hunches rather than real science. My impression is that two mental health professionals will frequently come up with wildly different recommendations, and that there's no objective way to measure who is correct.

I wouldn't mind a "guilty but insane" plea that would allow for something other than regular prison for the offender.

Jim

-- Anonymous, January 27, 2001

Here's my question about the insanity defense: what happens to people who are aquitted based on it? Do they wind up in mental hospitals, or what? I can certainly appreciate the mitigating circumstances, and I do find it disturbing that people who clearly don't understand their crimes are being put to death because of them, but I also don't want them out on the streets. Whatever their mental state when the crime was committed, a person who has killed someone clearly represents a danger to society. The fact that they don't understand their actions might even make them more of a danger. Whatever kind of institution they wind up in, I'd want to think that it's someplace they wouldn't have an easy time leaving. I'm all in favor of treatment and rehabilitation, but in some ways it seems like a high security mental institution might not be all that different from a prison.

-- Anonymous, January 27, 2001

As I understand it, being determined not guilty by reason of insanity means that you are completely cleared of that crime--but the government is able to have you involuntarily committed to a mental hospital if you are determined to be dangerous to society, even if you haven't actually committed a crime. So, that's what happened to John Hinckley--he was found not guilty of shooting Reagan, but was involuntarily committed to an institution by virtue of his being a threat to society.

I think the crucial difference between committment and prison is that the involuntary committment is only upheld as long as that person remains a danger (I'm not sure exactly how this is determined, but I know that there are periodic hearings, and the opinion of the doctors treating the person counts for a lot). If John Hinckley had immediately responded to psychiatric treatment, he could have been out of the hospital and completely free very quickly. I suspect his doctors are secretly relieved that he hasn't gotten better, because I certainly wouldn't want to take the responsibility for setting loose a would-be presidential assassin.

Jim, under your plan, what would you propose be done with people found guilty but insane who respond well to psychiatric treatment afterwards? Would they then go to regular jail? Is it fair to jail someone for a crime they committed when they were, in a sense, not themselves?

-- Anonymous, January 27, 2001

There's no consensus about the insanity defense because there's no consensus about why people go to prison. Do we sentence felons to spend years in prison as retribution, to rehabilitate them, or to keep them off our streets? If prison is simply a humane eye-for-an-eye program, it is immoral to put crazy folks who did not act based on choice into the place we reserve for bad folks who made bad choices. If prison is about rehabilitation, then we can put the crazy folks in there, too, and give them different treatment programs from the poor folks and the neglected folks who also committed crimes. Similarly, if prison is just a warehouse for dangerous people, there's no reason crazy folks shouldn't go there.

-- Anonymous, January 28, 2001

Well, in California we've taken care of that: one of our many sweeping criminal justice initiative measures a while back included a resolution that the People of the State of California have determined that the purpose of prison is punishment. Not rehabilitation, not retribution, not protection of society, but punishment. So, at least in this state, it would seem contrary to the stated policy to imprison someone who was found to be not mentally culpable.

-- Anonymous, January 28, 2001

I had not heard about that California referendum. You know, it's the truth. I don't think there's any denying that most lay people -- and probably all victims of crime -- would say retribution ought to be part of the goal of the criminal justice system. Once that's established, then at least you can think about policy coherently.

Okay, then, if you're adopting the view that the guilty should suffer and that's why you send felons to prison, then there almost has to be a NGRI plea available. In the same way that we don't put children below the age of reason in jail, we should protect the insane from being punished for acts that they could not control.

And it's easier to create a relevant definition of insanity. If the point of criminal justice is to punish, then the M'Naughton test -- whether the criminal would have acted the same in the presence of a policeman -- makes a lot of sense. The appreciation of right and wrong is the key to deciding whether the particular illness in question is exculpatory. If the criminal was beyond that comprehension,no punishment.

I actually am a big believer in prison as warehouse. My view would be that dangerous insane felons should get the same prison terms as dangerous sane felons. I would also advocate making prisons less awful for persons who display good behavior. You can imagine a graduated prison system where the inmates earn their way up to lower-security, more pleasant prisons. Y'know, sort of like the magnet school theory.

-- Anonymous, January 28, 2001

I think that there would be some constitutional problems with having psychiatrists decide whether a defendant was insane separately from a jury trial, if a defendant's insanity is relevant to his state of mind. This refers mainly to the defendant who is delusional -- the one who really doesn’t know or understand what he is doing. That defendant has a right to have a jury determine not only whether he factually did what he is charged with (the actus reus, for the lawyers and Latin freaks out there), but whether he had a culpable state of mind (mens rea).

-- Anonymous, January 29, 2001

It looks to me like it boils down to a basic choice--whether to risk putting insane people in prison, where they won't receive the most effective care, or to risk putting criminals in a mental hospital, where they won't receive the appropriate level of punishment for their crime.

I'm not comfortable with either type of person on the street without a reasonable amount of rehabilitation having been done. The mental patient in prison won't get that, nor will the criminal in the nuthouse.

No answers here...

-- Anonymous, January 29, 2001

My most recent job was as a forensic technician. I went to local prisons (in Louisiana) and administered standardized psychological tests that determine an inmate's competency to stand trial.

Generally, when a person commits a crime and thier sanity or competency to stand trial is in question, the court designates a sanity commission. This is a panel of usually a psychologist, a psychiatrist, and a general M.D. that determines whether the inmate is competent to stand trial or if the individual was mentally incapable of understanding his actions during the course of the crime. RARELY have I seen people actually try the NGRI defense. It usually doesn't work.

Should an inmate be found incompetent to stand trial, he is referred to a psychiatric institution for rehabilitation that also offers intense training in legal situations. They teach him about the law, his rights, etc. Once they consider him "rehabbed" he comes back to the sanity commission for a re-evaluation. Sometimes an inmate will be found marginally competent but will still go to trial--sometimes someone will be competent in our offices but have such a fragile hold on their ability to understand things that they are deemed incompetent because they would decompensate during trial. It can go either way.

After they go through their competency hearing, they usually then proceed to trial. Only in very extreme cases do they use the NGRI and even if the case is decided NGRI they don't just walk out--they are usually committed after the trial for a period of time.

Rarely do I see individuals so psychotic that the NGRI seems like a good idea. Usually, they will have some sort of disorder that will constitute a reduction in charge, but I don't usually see them get off entirely. At least where I worked, it was very hard to "fake" us out. Other than the usual competency screenings, we administered a number of tests designed solely to detect malingering. Of course, I can't say we were airtight, but I like to think we were pretty close.

-- Anonymous, February 01, 2001

I've never really understood this whole "insanity" thing. 99.9% of people who commit murder are insane by virtue of the fact that no "sane" person takes another person's life for a reason other than self-defense. No "sane" person would ever kill another person because they didn't want to be married to them anymore. No "sane" person kills a person then buries the bodies under their house. No "sane" person puts their children into a car and drives it into a lake. Yet these crimes were not tried on the basis of sanity.

The criteria of sane vs. insane for trial purposes seems to be competency. So why is it referred to as Not Guilty By Reason Of Insanity instead of Not Guilty By Reason Of Incompetency?

Someone please enlighten me.

-- Anonymous, February 07, 2001

What exactly is the difference between 2nd degree murder and voluntary manslaughter? I had always learned that 2nd degree murders were committed with no forethought, and that manslaughters were accidental or "involuntary." Of course, most of my knowledge of our legal system comes from the Lethal Weapon movies, so I'd appreciate some clarification.

-- Anonymous, February 14, 2001