Excuse: Insanity

While the movement to abolish the insanity defense dates to the turn of the century, its contemporaneous revival can be traced to the Nixon Administration's unsuccessful attempts to limit its use to cases where the defendant, by mental disease or defect, "lacked the state of mind required as an element of the offense charged" (S.1, 94th Cong., 1st sess., 6522 (1975). Perlin, unpacking at 670). This proposed limitation has been characterized as the "lemon squeezer" exception: the defense would apply only where the defendant thought the strangulation-victim's head was a lemon.

Henry Steadman and his colleagues have published important data giving us some inklings as to what actually happens when abolition is attempted. Their research reveals that, basically, "abolition" in Montana was a pretext. First, "abolition" had no meaningful statistical impact on the number of defendants pleading NGRI. Defendants continued to allege that they lacked the requisite mens rea for criminal responsibility.

Second, defendants who previously would have been found NGRI are now found incompetent to stand trial. Two-thirds of these were subsequently committed indefinitely to state hospitals where they were frequently treated on the same units as patients who had been found NGRI prior to abolition "reform." In short, the insanity statutes were reformed, but the detention system was not. It is certainly possible that some of the post-"abolition" pleas were the result of defense counsel wanting to "flag" for the court that the defendants were seriously mentally ill, and in need of psychiatric hospitalization. This is precisely the same strategy often employed by counsel in jurisdictions where the defense has not been abolished.

It is not yet clear what impact Steadman's empirical breakthrough will have on politically motivated abolitionist measures. If the Montana experience is a representative one, then the full measure of the abolition charade is clear. The defense is "abolished" in name, but the plea is entered for pretextual reasons. Severely mentally ill criminal defendants are treated in the same wards of the same forensic hospitals to which they would have been sent had they been found NGRI. This suggests the meretriciousness of much of the politically based abolition movement: voters are being told that their representatives are "doing something" about the crime problem, but only the labels describing the patients' forensic status change.