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Insanity Defense

History

"Complete madness" was first established as a defense to criminal charges by the common-law courts in late-thirteenth-century England. By the eighteenth century, the complete madness definition had evolved into the "wild beast" test. Under that test, the insanity defense was available to a person who was "totally deprived of his understanding and memory so as not to know what he [was] doing, no more than an infant, a brute, or a wild beast" (Feigl 1995, 161).

Colin Ferguson

Colin Ferguson was convicted in March 1995 for crimes associated with a massacre in Long Island, New York, on December 7, 1993. Ferguson killed six persons and injured nineteen after opening fire with an automatic pistol on a crowded commuter train.

Ferguson's trial was marked with controversy. He discharged his court-appointed attorneys, who believed him mentally incompetent to stand trial, and was allowed by the judge to act as his own attorney. He dropped the insanity defense prepared by his attorneys and argued that a mysterious gunman had committed the shootings.

His bizarre courtroom behavior appeared to contradict the judge's conclusion that Ferguson was competent to stand trial. Though many witnesses identified Ferguson as the gunman, he insisted a white man had taken the gun from his bag while he slept, shot the passengers, and then escaped, leaving Ferguson, who is black, to take the blame. During the trial he asserted that he had been charged with ninety-three counts only because the crime occurred in 1993.

Attorneys Ronald L. Kuby and WILLIAM M. KUNSTLER, whom Ferguson had discharged, had asked the judge before trial to find that Ferguson's paranoia and delusional state made him mentally incompetent to stand trial. Yet Ferguson refused to be examined by either prosecution or defense psychiatrists, believing he was not insane. The judge allowed Ferguson to stand trial, believing he could understand the nature of the charges against him and could assist in his own defense.

By 1840, most jurisdictions had refined the wildbeast test to cognitive insanity and supplemented that with irresistible impulse insanity. However, in 1843, a well-publicized assassination attempt in England caused Parliament to eliminate the irresistible impulse defense. Daniel M'Naghten, operating under the delusion that Prime Minister Robert Peel wanted to kill him, tried to shoot Peel but shot and killed Peel's secretary instead. Medical testimony indicated that M'Naghten was psychotic, and the court acquitted him by reason of insanity (M'Naghten's Case, 8 Eng. Rep. 718 [1843]). In response to a public furor that followed the decision, the House of Lords ordered the Lords of Justice of the Queen's Bench to craft a new rule for insanity in the CRIMINAL LAW.

What emerged became known as the M'NAGHTEN RULE. This rule migrated to the United States within a decade of its conception, and it stood for the better part of the next century. The intent of the M'Naghten rule was to abolish the irresistible-impulse defense and to limit the insanity defense to cognitive insanity. Under the M'Naghten rule, insanity was a defense if

at the time of the committing of the act, the party accused was labouring under such a defect of reason, from a 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.

Through the first half of the twentieth century, the insanity defense was expanded again. Courts began to accept the theories of psychoanalysts, many of whom encouraged recognition of the irresistible-impulse defense. Many states enacted a combination of the M'Naghten rule supplemented with an irresistible-impulse defense, thereby covering both cognitive and volitional insanity.

The insanity defense reached its most permissive standard in Durham v. United States, 214 F. 2d 862 (D.C. Cir. 1954). The Durham rule excused a defendant "if his unlawful act was the product of mental disease or mental defect." The Durham rule was lauded by the mental health community as progressive because it allowed psychologists and psychiatrists to contribute to the judicial understanding of insanity. But it was also criticized for placing too much trust in the opinions of mental health professionals. Within seven years of its creation, the rule had been explicitly rejected in 22 states. It is used only in New Hampshire.

IS THERE A NEED FOR THE INSANITY DEFENSE?

Though the insanity defense is rarely invoked in criminal trials, it remains a controversial issue. Legislators and the public generally question the need for the defense after a defendant in a highly publicized murder case is found not guilty by reason of insanity. For example, when John Hinckley successfully used the defense after shooting President RONALD REAGAN to impress the actress Jodie Foster, there was a public outcry. Legal and medical commentators have divided opinions about the need for the insanity defense.

Those who wish to retain it note that forty-eight of the fifty states have some type of insanity defense. This, they claim, is evidence of the need for such a defense. The public is given a distorted view of who uses the defense and how it is employed. In fact about one percent of criminal defendants invoke the defense. More important, criminals rarely "beat the rap" by PLEADING insanity. When an insanity defense is employed, it means the defendant admits committing the criminal behavior and is now seeking a not guilty verdict on the basis of his state of mind. If the jury does not agree, the defendant will be convicted, and generally will serve a longer sentence than will someone convicted of the same crime who has not pleaded insanity.

Juries find for only about 20 percent of the defendants who plead insanity. Even this figure does not reflect the reality that many insanity pleas are the result of plea bargains, which indicates that prosecutors agree that such pleas are sometimes appropriate.

Finally, the fact that most highly publicized cases involve murder disguises the true demographics: 60 to 70 percent of insanity pleas are for crimes other than murder. They range from assault to shoplifting.

All these myths have led to the belief that criminals can avoid punishment by claiming insanity. The truth is that the insanity defense is a risky one at best.

Apart from combating these myths, advocates of the insanity defense contend that a fundamental principle of CRIMINAL LAW is at stake. The insanity defense is rooted in the belief that conviction and punishment are justified only if the defendant deserves them. The basic pre-condition for punishment is that the person who committed the criminal behavior must have responsibility as a moral agent. When a person is so mentally disturbed that her irrationality or compulsion is impossible to control, that person lacks responsibility as a moral agent. It would be unfair to punish a person in such an extreme condition.

Based on this argument, proponents of the insanity defense do not support its application to a person who willingly consumes a powerful hallucinogen and then commits a criminal act. Nor would they allow its application to a person who is able to control a mental disorder through medication but fails to do so. But they do support the defense for a person who unwittingly consumes hallucinogens and then commits a crime.

Some opponents attack the insanity defense for confusing psychiatric and legal concepts, in the process undermining the moral integrity of the law. Both sides agree that the word insane is a legal, not medical, term. It is too simplistic to describe a severely mentally ill person merely as insane, and the vast majority of people with a mental illness would be judged sane if current legal tests for insanity were applied. The legal tests for insanity, moreover, require that a defendant's mental condition become so impaired that the fact finder may conclude the person has lost his or her free will. Because free will is not a concept that can be explained in medical terms, it may be impossible for a psychiatrist to determine if the mental impairment affected the defendant's capacity for voluntary choice. Without a way to measure insanity, it makes no sense to let prosecution and defense psychiatrists spar over the issue. A jury's decision based on psychiatrists' opinions may be grounded on unreliable evidence.

Another major argument against the insanity defense challenges its supposed moral basis. Critics contend that modern criminal law is concerned more with the consequences of crime and less with moral imperatives. If a person commits a criminal act, that person should be convicted. Mental illness can be taken into consideration at the time of sentencing. This line of reasoning supports laws that several states have adopted, which abolish the insanity defense and replace it with a new verdict of guilty but insane. This verdict carries a criminal penalty. It allows the judge to determine the length of imprisonment, which occurs in a hospital prison, and shifts the burden to the defendant to prove he is no longer dangerous or mentally ill in order to be released.

Finally, critics argue that the insanity plea is a rich person's defense. Only wealthy defendants can retain high-priced psychiatric experts. Persons represented by public defenders are usually afforded a psychiatric examination for the defense, but they may not get the same quality of exam, nor are they typically able to hire more than one examiner. Because a two-tiered criminal justice system is morally repugnant, critics contend that the insanity defense must be abolished.

In 1964, the American Law Institute (ALI) began to reassess the insanity defense in the course of promoting a new MODEL PENAL CODE. What emerged from the Model Penal Code Commission was a compromise between the narrow M'Naghten test and the generous Durham rule. The ALI test provided that a person was not responsible for criminal conduct if, at the time of the act, the person lacked "substantial capacity" to appreciate the conduct or to conform the conduct to the RULE OF LAW. The ALI test provided for both cognitive and volitional insanity. It also required only a lack of substantial capacity, less than complete impairment. The ALI version of the insanity defense was adopted by more than half the states and all but one federal circuit.

Several years later, another dramatic event led to another round of restrictions on the insanity defense. In 1981, John W. Hinckley, Jr., attempted to assassinate President RONALD REAGAN. Hinckley was prosecuted and acquitted of all charges by reason of insanity, and a resulting public outcry prompted Congress to enact legislation on the issue. In 1984, Congress passed the Insanity Defense Reform Act (Insanity Act) (18 U.S.C.A. § 17 [1988]) to abolish the irresistible-impulse test from federal courts. Initially, Reagan had called for a total abolition of mental illness as a defense to criminal charges, but his administration backed down from this position after intense LOBBYING by various professional organizations and trade associations.

The Insanity Act also placed the burden on the defendant to prove insanity. Before the Insanity Act, federal prosecutors bore the burden of proving the defendant's sanity BEYOND A REASONABLE DOUBT.

Most states joined Congress in reevaluating the insanity defense after Hinckley's acquittal. The legislatures of these states modified and limited the insanity defense in many and varied ways. Some states shifted the BURDEN OF PROOF, and some limited the applicability of the defense in the same manner as Congress did. A few states abolished the defense entirely. Chief Justice WILLIAM H. REHNQUIST, of the U.S. Supreme Court, opined in a dissent that it is "highly doubtful that DUE PROCESS requires a State to make available an insanity defense to a criminal

John Hinckley Jr. was prosecuted for the attempted assassination of President Ronald Reagan in 1981. His acquittal by reason of insanity sparked public outcry, ultimately leading Congress to pass the Insanity Defense Reform Act.
AP/WIDE WORLD PHOTOS

defendant" (Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 [1985]).

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Indirect evidence to Internal Revenue CodeInsanity Defense - History, Colin Ferguson, Is There A Need For The Insanity Defense?, Consequences, Defendants' Rights