The insanity defense refers to that branch of the concept of
insanity which defines the extent to which men accused of crimes may
be relieved of criminal responsibility by virtue of mental disease.
The terms of such a defense are to be found in the instructions
presented by the trial judge to the jury at the close of a case. These
instructions can be drawn from any of several rules used in the
determination of mental illness. The final determination of mental
illness rests solely on the jury who uses information drawn from the
testimony of "expert" witnesses, usually professionals in the field of
psychology. The net result of such a determination places an
individual accordingly, be it placement in a mental facility,
incarceration, or outright release. Due to these aforementioned
factors, there are several problems raised by the existence of the
insanity defense. Problems such as the actual possibility of
determining mental illness, justifiable placement of judged "mentally
ill" offenders, and the overall usefulness of such a defense. In all,
I believe that these problems, as well as others which will be
mentioned later, lead us to the conclusion that the insanity defense
is useless and should be abolished entirely. Insanity is a legal, not
a medical definition. Therefore, mental illness and insanity are not
synonymous: only some mental illness constitutes insanity. Insanity,
however, includes not only mental illness but also mental
deficiencies. Due to this, there are problems in exactly how to apply
a medical theory to a legal matter (Herman, 1983;128). The legal
concepts of mental illness and insanity raise questions in a conflict
between what are termed legalistic criminology and scientific
criminology: mens rea, punishment v. treatment, responsibility, and
prisons v. hospitals. This debate seesaws to and fro amidst a grey
area between law and science. The major difficulty with a theory such
as mental illness is that it is just that, a theory. To scientists
theories are a way of life, but applied to the concept of law theories
become somewhat dangerous. By applying a loose theory such as mental
illness to law we are in essence throwing the proverbial "monkey
wrench" into the wheels of justice.
TESTING FOR INSANITY
At the center of the legal use of insanity lies the mens rea.
Every crime involves a physical act, or actus reus, and a mental act,
or mens rea, the non-physical cause of behavior. The mens rea is the
mental element required for a crime, and if absent excuses the
defendant from criminal responsibility and punishment (Jeffery,
1985;49). The difficulty here lies in analyzing the mens rea. In order
to do this lawyers apply one of several rules used by psychologists.
These rules range from the Irresistible Impulse Test to the M'Naghten
Rule. Each of these rules approach mental illness/capacity in a
different way and in my opinion each falls short of actual proof. I
will discuss each in detail. The M'Naghten Rule The M'Naghten Rule,
also known as the right-wrong test, arose in 1843 during the trial of
Daniel M'Naghten who argued that he was not criminally responsible for
his actions because he suffered from delusions at the time of the
killing. The M'Naghten Rule reads: A defendant may be excused from
criminal responsibility if at the time of the commission of the act
the party accused was laboring under such a defect of reason, from a
disease of the mind, as not to know the nature and the quality of the
act he was doing, or if he did know it, that he did not know that he
was doing what was wrong. Thus, according to the rule, a person is
basically insane if he or she is unable to distinguish between right
and wrong as a result of some mental disability. Criticism of the
M'Naghten Rule has come from both legal and medical professions. Many
criticize that the test is unsound in its view of human psychology.
Psychiatry, it is argued, views the human personality as an integrated
entity, not divisible into separate compartments of reason, emotion,
or volition (Herman, 1983;138). Additionally, the test is criticized
for defining responsibility solely in terms of cognition. While
cognitive symptoms may reveal disorder, they alone are not sufficient
to give an adequate picture of such a disorder or determine
responsibility. Also, it has been shown that individuals deemed insane
by psychologists have possessed the ability to differentiate right
from wrong. I believe that the major weakness of this test, however,
lies in the fact that courts are unable to make clear determinations
of terms such as disease of the mind, know, and the nature and quality
of the act. The Irresistible Impulse Test This rule excludes from
criminal responsibility a person whose mental disease makes it
impossible to control personal conduct. Unlike the M'Naghten Rule, the
criminal may be able to distinguish between right and wrong, but may
be unable to exercise self-control because of a disabling mental
condition. Normally this test is combined with the M'Naghten Rule.
Many of the criticisms of the Irresistible Impulse Test center around
the claim that the view of volition is so extremely narrow that it can
be misleading. Just as the M'Naghten Rule focused on cognition rather
than the function of the person in an integrated fashion, the
Irresistible Impulse Test abstracts the element of volition in a way
that fails to assess a person's function in terms of an integrated
personality. Additionally, it has been asserted that the concept at
best has medical significance in only minor crimes resulting from
obsession-compulsion, and that seldom, if ever, can it be shown that
this disorder results in the commission of a major crime (Seigel
1993;144). Such a claim is subject to the objection that it cannot be
conclusively proven. Interestingly, it has been shown by many
psychiatric authorities that no homicidal or suicidal crime ever
results from obsession-compulsion neurosis. Another criticism of this
test is the difficulty, if not the impossibility, of proving the
irresistibility of the impulse, which the definition of the test
requires. The jury, as I said earlier, has the final decision, and is
faced with deciding when the impulse was irresistible and when it was
merely unresisted, a task that psychiatrists suggest is impossible to
perform. We are also able to argue that the test is one of volition.
It is too narrow in that it fails to recognize mental illness
characterized by brooding and reflection (Herman 1983;140). The test
is misleading in its suggestion that where a crime is committed as a
result of emotional disorder due to insanity, it must be sudden and
impulsive. The Durham Rule The Durham Rule, also known as the Products
Test, is based on the contention that insanity represents many
personality factors, all of which may not be present in every case. It
was brought about by Judge David Bazelon in the case of Durham v. U.S.
who rejected the M'Naghten Rule and stated that the accused is not
criminally responsible if the unlawful act was the product of mental
disease or defect. The primary problem with this rule of course lies
in its meaning. Again it is impossible for us to define mental disease
or defect, and product does not give the jury a reliable standard by
which to base a decision. It is unnecessary to offer further
criticism, for my purpose I believe this attempt fails at it's onset.
The Substantial Capacity Test Another test is termed the Substantial
Capacity Test which focuses on the reason and will of the accused. It
states that at the time of the crime, as a result of some mental
disease or defect, the accused lacked the substantial capacity to (a)
appreciate the wrongfulness of their conduct or (b) conform their
conduct to the requirements of the law. This test is disputable in the
fact that it is not only impossible to prove capacity of reason or
will, but to even test such abstracts seems absurd. Additionally, the
term "substantial capacity" lies question in that it is an abstract
impossible to define.
INSANITY: HOW IT IS ESTABLISHED
The meaning of insanity is the legal definition as put forth
in a rule such as the M'naghten Rule or whatever school of thought is
in use on any given day. The legal test is applied in an adversary
system which pitches lawyer against psychiatrist and psychiatrist
against psychiatrist. Because of this, the psychiatrist is often
perceived not as a scientist but a partisan for the side which is
paying for his testimony (Jeffery, 1985;56). The major problem in this
case being that the use of a neutral expert is impossible to
implement. In the end the determination of insanity is a layman's
decision since it is the jury which ultimately decides whether the
defendant is sane or insane. This of course is ludicrous since
professional scientists cannot agree on the meaning of mental illness.
How can a layman make such a decision especially after listening to
contradictory testimony which is manipulated by opposing lawyers. I
believe that the major problem that we can point out here is in the
futility of asking psychiatrists to testify in terms of legal concepts
of insanity. The psychiatrist finds himself in a double bind: he has
no medical definition of mental illness and he must answer questions
from lawyers concerning legal insanity, right and wrong, and
irresistible impulses. As stated by Packer: "The insanity defense
cannot tolerate psychiatric testimony since the ethical foundations of
the criminal law are rooted in beliefs about human rationality,
deterribility, and free will. These are articles of moral faith rather
than scientific fact."
MENTAL ILLNESS AND CRIMINAL BEHAVIOR
In the insanity defense we have no variable independent of the
criminal behavior we are studying. Insanity refers to a class of
behaviors known by observing the behavior of the patient, and
criminality is a class of behavior likewise known by observing the
behavior of the defendant. We are involved in classification and
labels. Where we have one class of behaviors labeled as schizophrenia,
and the other class labeled as crimes, what we have are two
co-existing classes of behavior in the same individual, and not a
cause or effect relationship (Simon, 1988;47). A person can be
Catholic and commit a robbery without a casual relationship existing;
likewise, a person can be schizophrenic and a robber without a casual
relationship existing between the two classes of behavior. Coexistence
does not show a casual relationship. Behavior cannot cause behavior.
What we must do, in order to prove a relationship between mental
illness and criminal behavior is produce some independent link between
the two classes of behavior on a biochemical level. We must have a
definition of mental illness independent of the behavioral symptoms in
order to establish a casual relationship between crime and mental
illness. There is such a view and it is termed the Biological
Psychiatric view. The view basically states that there is some defect
or malfunction in the actual make-up of the brain of an individual
which causes schizophrenia. This same defect then causes the criminal
behavior such as robbery or murder. The problem here is that we have
no actual way of mapping the brain and conclusively determining
exactly what portion thereof is responsible for either type of
behavior much less that one area is responsible for both. In essence
even if true this theory is unprovable. There is also a statistical
relationship between crime and mental illness. Guttmacker and Weihofen
found 1.5 percent of the criminal population psychotic, 2.4 percent
mentally defective, 6.9 percent neurotic, and 11.2 percent
psychopathic (Jeffery, 1985:66). These figures are very unconvincing.
Additionally they are based on old diagnostic categories and
procedures which are most unreliable. Also, the meaning of neurotic or
psychotic or psychopathic is uncertain within the context of these
studies and they do not refer to modern biological categories of brain
disease. Terms such as insanity, mental illness, and mens rea have no
scientific meaning, therefore we must leave as unspecified and
uncertain the relationships between insanity, mental illness and
criminal law. We certainly cannot conclude that mental illness bears
any relationship to diseases of the brain, nor can we conclude that
mental illness or insanity causes criminal behavior.
THE MYTH OF MENTAL ILLNESS
Not only is there no agreement as to the meaning of insanity
and mental illness, but to add further confusion, there is a school of
thought that states that mental illness is a myth and does not exist.
This approach is found in the works of such persons as Thomas Szasz
(1961;1963) who argues that mental illness is a myth and label applied
to behavior by psychiatrists who are making political and ethical
decisions, and Laing (1969;1971) who claims that labels are being used
by society to impose violence and control on people. View such as
these and others deny the physical and biological basis of behavioral
disorders. They separate completely biology and behavior, brain and
behavior, and mental and physical. The fact that we refer to "mental"
disease has been cited as evidence that we do not regard it as disease
but as something outside the realm of biological science. Szasz
states, for example, that the psychiatrist confuses physical disease
and neurological disorders with mental diseases. A study in evidence
of this was done by Rosenhan (Ziskin, 1975:54) known as "Being Sane in
Insane Places." Rosenhan, a psychologist, placed eight normal people
in mental hospitals as "pseudo-patients." They were diagnosed as
schizophrenic, and later on when they appeared normal, rediagnosed as
schizophrenia in remission. After one experiment one hospital
challenged Rosenhan to send them "pseudo-patients" during the next
several months. At the end of the period the hospital announced that
they had discovered that 12 percent of their admission were
"pseudo-patients" from Rosenhan went in fact none had ever been sent.
USEFULNESS OF THE INSANITY DEFENSE
As we have already seen, there is much confusion dealing with
the placement of insanity and mental illness, it's definition, and
even it's very existence. We have likewise seen the use of several of
the various testing techniques used to determine mental illness and
their shortcomings. This information alone would lead us to believe
that the insanity defense needs at least to be revised and improved in
many areas. What we have looked at thus far is what precedes the
actual judgment of sanity. What we have not looked at, however, is
that implementation of the actual judgment of sanity. That is to say,
the actual results of the defense when successful. I believe that it
is here that we will see the most heinous travesties of justice. There
are several decisions which can be reached when insanity is at last
proven. These judgements include not guilty by reason of insanity
(NGI), and guilty but mentally ill (GMI), with the later verdict not
being implemented until the early eighties in an attempt to reform the
insanity defense and decrease the amount of NGI verdicts. The NGI
verdict is the more dangerous verdict and the one which I believe has
the strongest argument against the insanity defense. The objection
here is that it allows dangerous men to return to the streets where
they commit heinous crimes. Of the 300 persons committed on NGI
verdicts 80 percent were released from mental hospitals by
psychiatrists, and in several instances these mental patients went on
to kill again (Jeffery, 1985;73). My belief is that psychiatrists and
mental hospitals do not cure the mentally ill. This is the reality of
the insanity defense which I find irrefutable; in many cases criminals
are released due to loopholes such as the insanity defense to simply
commit the same crime again. Even is these cases make up 10 out of
100,000, there now exist 10 crimes that need not have happened. The
guilty but mentally ill approach has three serious flaws. First it
strikes indirectly at the mens rea requirement, introducing the
slippery notion that the accused had partial, but not complete,
criminal intent. Second, it creates a lesser and included offense that
judges and juries may choose as simply a compromise verdict. They
believe the accused probably did something wrong and deserves some
punishment, but they are unwilling to bring in a verdict of guilty on
the top charge. The GMI verdict would allow them to split the
difference. Finally the GMI verdict is fraudulent on the issue of
treatment. As proposed, it makes no provision for treatment of the
person who has been declared mentally ill. The GBI option has already
proved to be a bogus reform. A 1981 Illinois law added the GMI as an
additional verdict, retaining the traditional insanity defense. In
Cook County, verdicts of not guilty by reason of insanity actually
increased from 34 to 103 between 1981 and 1984. At the same time GMI
went from 16 in 1982, the first year the option was available, to 87
in 1984. There has been much evidence of a "hydraulic" effect that was
contrary to the law's intent. In both Illinois and Michigan, GMI
verdicts involved people who would otherwise have been found guilty,
not defendents who would have been found not guilty by reason of
insanity (Walker, 1994;155-156). The real function of the GBI option
is to appease public opinion. The public has little concern for the
details of what actually happens to a mentally ill criminal defendent.
Basically, it wants a symbolic statement of "guilty." In practice, the
GMI verdict has as much meaning as "guilty but brown eyes." How
dangerous is the GMI verdict? As we say with the NGI verdict, many
extremely dangerous mentally ill criminals were simply released onto
the streets where they committed the same crimes. Does the GMI verdict
solve this problem? We have some "natural experiments" on this questio
rising from some court decisions. A 1971 decision forced to
reassessment of 586 inmates of Pennsylvania's Fairview State Hospital
for the Criminaly Insane who were placed there under the GMI verdict.
Over two-thirds were eventually released. Over the next four years, 27
percent were rearrested. Eleven percent were rearrested for violent
crime. Including some others who were rehospitalized for a violent
act, a total of 14.5 percent of those released proved to be dangerous.
ABOLISH THE INSANITY DEFENSE
Abolishing the insanity defense is easier said than done for
the simple reason that the mens rea requirement remains a fundamental
legal principle. The proposal that "mental condition shall not be a
defense to any charge of criminal conduct" could be interpreted in one
of two ways. The broader interpretation would mean that absolutly no
aspect of mental condition could be taken into account. In effect,
this interpretation would abolish the mens rea requirement altogether.
The prosecution would not have to prove anything about the accused's
mental state. This is unneccessarry. For one thing, it would wipe out
the distintions that separarte first-degree murder, second-degree
murder, and manslaughter. It is doubtful that anyone againt the
insanity defense would choose to take this approach. So sweeping, in
fact, would be it's effect, that it would probably be declared
unconstitutuional. A more limited reading of the wording "mental
condition shall not be a defense to any charge of criminal conduct"
would mean that an affermative plea of "not guilty by reason of
insanity" could not be raised. The crucial distinction here is drawn
between affermative and ordinary defenses. An ordinary defense is
simply an attempt to shown that the prosecution has failed to connect
the accused with the crime, a defense used in everyday law. An
affermative defense is raised when the prosecution has connected the
accused with the crime, as in an example of self-defense. The defense
argues that, yes, the accused did shoot and kill the person and did so
intentionally, but because the act was commited in self-defense the
accused does not bear criminal responsibilty for it. The same is true
in the case of a criminal act commited under duress. The insanity
defense, in this respect, is an affermative defense. It is this usage
that needs to be abolished. In cases such as self defense it may be an
adequate and totally acceptable defense, for in how many cases do you
hear of a man being aquitted due to a self-defense plea returning to
the streets in order to kill again? To draw a comparison between the
two and argue that both defenses are neccessarry to the total order is
naive and unfounded.
The law of insanity involves the conceptes of mens rea and
punishments, as does the criminal law in general. Insanity is a legal
concept, not a medical concept, and insanity is defined within the
context of an adversary system wherin psychiatrists and lawyers battle
one another over the meaning of terms such as "right and wrong" and
"ability to control one's behavior." Mental illness and mental disease
are psychoanalytic concepts, not scientific concepts. Mental illness
is defined by talking to people or by giving them written tests, and
there is no agreement among psychiatrists as to the meaning of this
illness or whether or not it really exists. Some psychiatrists call
mental illness a myth. The psychoanalyst has not been successful in
treating or predicting mental illness. The psychoanalyst has never
established a casual relationship between mental illness and criminal
behavior. The insanity defense would require both a mental illness and
a relationship between the illness and the criminal behavior, neither
of which could be scientificly established. Of the criminals both
aquited and convicted using the insanity defense, a good number have
shown conclusive evidence of recidivism. Many dangerous persons are
allowed to return to the streets and many non-dangerous persons are
forced into facilities due to an insanity plea adding further
confusion and injustice within both the legal and medical systems. In
my opinion the iunsanity defense is impossible to maintain on the
basis of rules such as the M'Naghten Rule, and the relationship
between law and psychiatry must be reestablished on a more scientific
level, based on the neurological work now going on in the brain
sciences. The insanity defense is impracticle in it's present usage
and should therefore be abolished.
Society has long recognized the need to distinguish between those defendants charged with a crime who are and those who are not responsible for their acts. The insanity defense exists to identify which individuals fall into the latter category because of a mental disability. When the nature of defendants’ mental impairments are such that they are not criminally responsible for their acts, it is not only unjust to impose criminal liability and punishment, but it is also ineffective. Therefore, the Mental Health America’s position is as follows:
- It is vital that states provide for the ongoing availability of a complete insanity defense resulting in a verdict of not guilty by reason of insanity.
- When the insanity defense does not apply, the availability of mens rea and diminished capacity defenses remains critically important.
- “Guilty but mentally ill” laws should be abolished as they are ineffective, unjust and misleading.
- States must provide individuals who are acquitted by reason of insanity with appropriate, recovery-based treatment, rather than treat these defendants as if they have been found guilty.
- The decision whether to plead insanity must be entirely the defendant’s, although courts should take action to ensure that the defendant is capable of understanding the consequences of the decision.
The Insanity Defense
Criminal sanctions promote public safety through the deterrent effect of the punishment itself and through the stigma of a criminal conviction. Criminal sanctions also further retributivist goals. Without blameworthiness, however, punishment is not justified. When an individual is determined to be not criminally responsible, acquittal via a verdict of “not guilty by reason of insanity” (NGRI) is the only appropriate action. Since concerns about public safety and the need for treatment usually remain after acquittal, these concerns should be addressed through involuntary treatment in mental hospitals rather than through confinement in prison.
Necessary Components of a Comprehensive Insanity Defense
In order to effectively distinguish between those who are and those who are not criminally responsible for their acts, the insanity defense must contain both a “cognitive” prong and a “volitional” prong. That is, an insanity defense should exculpate both those who are unable to understand that their act is wrong, as well as those who are unable, due to mental disability, to control their actions.
Section 4.01 of the Model Penal Code (MPC), promulgated by the American Law Institute (ALI), provides a comprehensive insanity defense. Section 4.01 of the MPC remains substantially unchanged from when it was initially drafted in 1962 and currently provides as follows:
Section 4.01: Mental Disease or Defect Excluding Responsibility.
(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he [or she] lacks substantial capacity either to appreciate the criminality/wrongfulness of his [or her] conduct or to conform his [or her] conduct to the requirements of the law.
(2) As used in this Article, the terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.
This formulation represents the consensus of American legal scholars on the appropriate scope of the insanity defense. § 4.01(1) establishes both “cognitive” and “volitional” prongs, ensuring that the defense is appropriately inclusive, but § 4.02(2) minimizes the risk that the defense will be over inclusive or actually encourage repeated criminal activity. Mental Health America (MHA) endorses the MPC formulation of the insanity defense.
The Insanity Defense in Practice
Despite public fears, defendants do not abuse the availability of the insanity defense. In felony cases, the defense is invoked less than 1% of the time, and even when it is employed, it is only successful 25% of the time. Further, in approximately 70% of the cases in which the defense has been successfully employed, the prosecution and defense have agreed on the appropriateness of the insanity plea before the trial. That individual invocations of the defense are contested relatively infrequently suggests that it is no more likely for a defendant to be incorrectly found not guilty by reason of insanity than to be incorrectly found not guilty for any other reason. Finally, there is a high likelihood of court-mandated treatment following an insanity acquittal, often lasting a substantial length of time, which serves protect the public from defendants who may be dangerous and also to discourage people from pretending to be mentally ill in order to use the defense. These realities all refute perceptions that the insanity defense creates a loophole in criminal liability.
Although the wariness with which the public often views the insanity defense is unmerited, some states’ insanity laws nonetheless reflect this suspicion. After the MPC was first promulgated, most states initially incorporated identical or substantially similar defenses into their laws. Since the late 1970s, however, many states have taken action to limit their insanity defense laws and to bring them back toward pre-MPC formulations. As of 2004, only 20 states still had insanity defense laws that incorporated the MPC formulation in its entirety or in a substantially similar fashion. As of 2010, four states (Idaho, Kansas, Montana, Utah) had eliminated the insanity defense entirely, and the remainder have limited the insanity defense to the cognitive prong.
The two-pronged protection of § 4.01 is necessary in order to comply with two different constitutional requirements: due process and the prohibition against cruel and unusual punishment. In considering these issues, however, the Supreme Court has left considerable discretion to state courts. The Court has indicated that states may be required to provide at least some minimal defense based on mental illness, but has not yet found a state’s law to be below that minimum and has declined to specify exactly what that minimum entails. The court upheld Arizona’s limited insanity defense in Clark v. Arizona, and denied certiorari in Delling v. Idaho, a case alleging that Idaho’s replacement of the insanity defense with a “guilty but mentally ill” verdict constitutes a due process violation. Still, three justices dissented from the Court’s denial of certiorari in Delling, arguing that Idaho’s practice does violate the constitution. MHA agrees with this dissenting position.
MHA strongly opposes the popular, scientifically-unfounded belief that mental illness predisposes a person to act violently. See MHA Position Statement 72, Violence: Community Mental Health Response, http://www.mentalhealthamerica.net/positions/violence Thus, restricting the insanity defense would not enhance public safety.
The Mens Rea and Diminished Capacity Defenses
To be guilty of a crime, a person must intend to do the act that the state seeks to punish. This “mens rea” is a constitutional requirement, although courts have allowed states to limit it in certain ways. Thus far, the Supreme Court has held that a diminished capacity defense is not constitutionally guaranteed. But Mental Health America believes that people accused of crimes should be able to assert mens rea and diminished capacity defenses at trial using expert psychological evidence.
Defining the Defenses
In anything more than trivial offenses, a finding of guilt in a criminal trial generally requires some form of mens rea, or “guilty mind,” often expressed as knowledge or intent. A defendant that does not have the required mens rea is not guilty of the crime. This is the mens rea defense.
A diminished capacity defense is different from a mens rea defense, but the two overlap considerably and there is not always a clear distinction between the two. A diminished capacity defense allows for mitigation of a criminal conviction based on the defendant’s mental impairment, even if the insanity and mens rea defenses have both failed. The diminished capacity defense reflects the notion that a defendant, while guilty, may, nevertheless, be guilty of a less serious crime due to mental impairment.
The Defenses in Practice
A crime’s required mens rea is a critical element of the offense, and without it a defendant cannot be found guilty. However, some courts have upheld state laws that interfere with this requirement. The Supreme Court in Clark upheld Arizona’s rule that effectively precludes the use of most psychological evidence in making a mens rea or diminished capacity defense at trial, and instead relegated it to use only in pleading insanity. In so holding, the Court simultaneously limited the defendant’s ability to establish a mens rea defense and declared that diminished capacity defenses are not constitutionally required. As of 2007, only three states still allowed a diminished capacity defense.
As the dissent in that case noted, the practical effect of this rule is that “a person would be guilty of first-degree murder if he knowingly or intentionally …committed the killing under circumstances that would show knowledge or intent but for the defendant’s mental illness.” MHA joins this dissent in arguing that such a rule is unconstitutional because it results in a guilty verdict even when the defendant did not satisfy a critical element of the crime. Moreover, even if the defendant possessed the required mens rea, the mental illness may remain relevant to determining the extent of his or her blameworthiness, thus necessitating a diminished capacity defense as well.
The MPC Approach
The MPC both assures a mens rea defense and establishes a limited diminished capacity defense in the same section, which provides as follows:
Section 4.02: Evidence of Mental Disease or Defect Admissible When Relevant to Element of the Offense; Mental Disease or Defect Impairing Capacity as Ground for Mitigation of Punishment in Capital Cases.
(1) Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind that is an element of the defense.
(2) Whenever the jury or the Court is authorized to determine or to recommend whether or not the defendant shall be sentenced to death or imprisonment upon conviction, evidence that the capacity of the defendant to appreciate the criminality [wrongfulness] of his [or her] conduct or to conform his [or her] conduct to the requirements of law was impaired as a result of mental disease or defect is admissible in favor of a sentence of imprisonment.
Viewed in light of § 4.01, § 4.02 indicates that mens rea and diminished capacity defenses are to be available independently of the insanity defense. § 4.02(2) provides a diminished capacity defense only in capital cases. While this formulation is more protective than the current law in the vast majority of states, the diminished capacity defense should not be limited to capital cases. A broader, but still sufficiently limited, defense would allow diminished capacity mitigation in all specific intent crimes, not only in capital crimes.
Guilty but Mentally Ill Laws
Laws establishing a “guilty but mentally ill” (GBMI) verdict are inappropriate for two reasons. First, they are inappropriate because the GBMI verdict is no different in practice from a finding of guilty. Second, they are inappropriate because this alternative to the insanity defense may confuse jurors. These fundamental problems persist whether the GBMI verdict is provided in addition to, or as a replacement for, the NGRI verdict.
A GBMI verdict provides no benefit to society or to criminal defendants because it has the same consequences as a guilty verdict. Someone found GBMI may be given any sentence that she or he could have been given if found guilty. That includes a sentence of death. Virtually every person found GBMI is sent to prison. Persons found GBMI are entitled to mental health services while imprisoned. However, they have no greater right to mental health services in prison than those simply found guilty. That is because all persons confined in prison have a constitutional right to mental health services. While GBMI statutes typical permit defendants to be transferred to mental hospitals, these provisions are permissive rather than mandatory and are rarely utilized.
Because the GBMI verdict is indistinguishable from the guilty verdict, GBMI laws serve no purpose other than to confuse jurors. Jurors may understandably believe that the GBMI verdict is a compromise between the NGRI and guilty verdicts, and thus the availability of a GBMI verdict may cause them to find a defendant GBMI when they would not have been willing to give a guilty verdict. This issue is compounded by the fact that jurors are often wary of the NGRI verdict.  Although empirical evidence from actual trials is not yet available, researchers have considered, in the mock trial setting, the impact on jury preferences of the simultaneous availability of NGRI and GBMI verdicts. Research indicates that juries may use GBMI as a mechanism for “avoiding the difficult moral and social issues raised by an insanity defense.”
Defendants’ challenges of the GBMI verdict as a due process violation have yet to succeed. As of 2009, over 20 states provided for a GBMI verdict. Four of these states had eliminated the NGRI verdict entirely and replaced it with GBMI. The remaining 16 states with GBMI laws allow for both an NGRI verdict and a GBMI verdict. In either context, the GBMI verdict is inappropriate and seriously undermines the important policies that require maintaining the insanity and diminished capacity defenses, discussed above.
The Consequences of Pleading Insanity
An individual who is acquitted on the basis of insanity should be treated. However, it is critically important, both out of concern for promoting the public safety and out of concern for the defendant’s rights, that the purpose of this treatment is rehabilitation, not to serve as a punitive alternative to imprisonment. That is, the aim of the treatment should be to eventually release an individual into the community, not to punish that individual for a crime for which the defendant has been judged not morally culpable.
In Jones v. US, the Supreme Court found it constitutional for states to confine insanity acquittees in a mental health facility for periods longer than they would have been imprisoned had they been found guilty of the crime. In reality, this routinely occurs. This practice is appropriate only for as long as the additional period of confinement is clinically justified and serves a valuable rehabilitative purpose. It is critical that insanity acquittees are released when they are no longer dangerous to society.
Allowing these extended treatment periods may very well further legitimate goals, but the policy of long-term treatment after NGRI verdicts increases the risk of treatment being used as a pretext for punishment. In order to protect against this, states should adopt rigorous standards and procedures.. Review boards that are as independent of the criminal justice system and of the courts as possible are one mechanism to achieve this goal. These boards serve to monitor an insanity acquittee’s clinical progress and evaluate the need for continued treatment on an ongoing basis. The modern trend in states with a full insanity defense is toward use of such a system. Independent review boards serve to place the treatment and release decision-making process in the hands of those most qualified to make such determinations, and those who are most likely to act only out of public safety and treatment concerns.
The Decision to Plead Insanity
People found not guilty by reason of insanity will often be confined longer than they would have been had they been found guilty. The conditions of their confinement will also be quite restrictive. Of course, it is true that in most jurisdictions most persons with serious mental illnesses will be safer and receive better care in a mental hospital than in a prison. But respect for individual autonomy requires that the defendant be permitted to choose between these two difficult outcomes. It is critical that the decision to plead insanity is left to the defendant.
However, precisely because the decision whether to plead insanity is difficult, it is important that courts insure that criminal defendants have the capacity to make this choice and are provided with all of the relevant information. The likely length of confinement after an NGRI verdict and the likely treatment to be received are critical factors in deciding whether or not to invoke the insanity defense. And these consequences may be difficult to predict. Just as courts must ensure that defendants are competent to plead guilty and are aware of the consequences, so too should courts ensure that defendants are competent to plead insanity and are informed about the likely consequences of the plea.
Call to Action
MHA encourages policy and legal changes as necessary in order to achieve the following goals:
- States should provide a full insanity defense. When defendants’ mental illnesses prevent them from understanding the wrongfulness of the act or prevent them from controlling their behavior, they should be acquitted by reason of insanity. Criminal liability in these instances is neither appropriate nor effective.
- Even if a defendant does not qualify for an insanity acquittal, the mental illness may remain critically relevant to the criminal proceedings. States should therefore also provide for separate, albeit related, mens rea and diminished capacity defenses.
- “Guilty but mentally ill” verdicts are ineffective and unjust. States should neither replace the insanity defense with this disposition nor offer it as an alternative to judges and jurors considering an insanity defense.
- People acquitted because of a finding of insanity should be treated in an appropriate clinical setting. The purpose of this treatment should be rehabilitative, not punitive.
- Because of the weighty implications of the decision to plead insanity, the defendant must be the one to decide whether to use the insanity defense. However, courts should act to ensure that the defendant is capable of understanding the consequences of the decision. Until a defendant can do so, the state should not find him or her fit to stand trial.
The Mental Health America Board of Directors approved this policy on June 8, 2014. It will remain in effect for five (5) years and is reviewed as required by the Mental Health America Public Policy Committee.
Expiration: December 31, 2019
 Livermore, Joseph and Paul Meehl. The Virtues of M’Naghten. Minnesota Law Review. Vol. 51. 789: 790-793 (1966).
 Winkel, Susan. Free Fill, Responsibility & Forensic Psychiatry: An Exploration of Justifications for the Insanity Defense. GGzet Wetenschappelijk, Vol. 17, No. 1: 36, 44 (2013).
 Bonnie, Richard. The Moral Basis of the Insanity Defense. American Bar Association Journal. Vol. 69, No. 2: 794, 795 (1983).
 About the American Law Institute. American Law Institute. Available at http://www.ali.org/index.cfm?fuseaction=about.overview (Last visited Feb. 15, 2014).
 Robinson, Paul. An Overview of Mental Illness Under U.S. Criminal Law. University of Pennsylvania Law School, Public Research Paper, 2 (2013).
 Costanzo, Mike and Daniel Krauss. Forensic and Legal Psychology. Worth Publishers, 206 (2012).
 Braff, Jeraldine, et al. Detention Patterns of Successful and Unsuccessful Insanity Defendants. Criminology, Vol. 21, No. 3: 439, 446 (1983).
 Robinson, Paul and Markus Dubber. An Introduction to the Model Penal Code. University of Pennsylvania Law School, 15. Available at http://www.law.upenn.edu/fac/phrobins/intromodpencode.pdf (Last visited Feb. 15, 2014).
 State Court Organization, The Defense of Insanity: Standards and Procedures. Department of Justice. Table 35, 209-212 (2004). Available at http://www.bjs.gov/content/pub/pdf/sco04.pdf (Last visited Feb. 15, 2014).
 Lillienfeld, Scott and Hal Arkowitz. The Insanity Verdict on Trial. Scientific American, Dec. 23, 2010. Available at http://www.scientificamerican.com/article/the-insanity-verdict-on-trial/ (Last visited Feb. 21, 2014).
 Robitscher, Jonas and Andrew Haynes. In Defense of the Insanity Defense. Emory Law Review, Vol. 31: 9, 59 (1982).
 See Clark v. Arizona, 548 U.S. 735, 755 (2006).
 See Delling v. Idaho, 133 S.Ct 504, 504 (2012).
 Arenella, Peter. The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage. Columbia Law Review, Vol. 77, No. 6: 827, 829 (1977).
 Parry, John and Eric Drogin. Mental Disability Law, Evidence, andTestimony. American Bar Association, 207 (2007).
 Id. at 208.
 Clark v. Arizona, 548 U.S. 779.
 Parry at 209.
 Clark v. Arizona, 548 U.S. 797 (Kennedy, J., dissenting) (emphasis added).
See People v. Crews, 122 Ill.2d 266, 294 (1988); State v. Anderson, 966 So.2d 973, 984 (2008).
 See Estelle v. Gamble, 97 S.Ct 285, 291 (1976)(holding that deliberate indifference to prisoner’s serious medical needs constitutes a violation of the 8th Amendment’s prohibition again cruel and unusual punishment). See also Brown v. Plata, 131 S.Ct 1910, 1947 (2011)(Reaffirming that the 8th Amendment requires the state to provide medical treatment, specifically mental health treatment, to prisoners).
 See, e.g., 730 ILCS 5/5-2-6.
Smith, Steven. Neuroscience, Ethics, and Legal Responsibility: The Problem of the Insanity Defense. Springer. Journal of Science and Engineering Ethics, Vol 18: 475, 478 (2012).
[24 ]Melville, John and David Naimark. Punishing the Insane: The Verdict of Guilty but Mentally Ill. American Academy of Psychiatry Law Journal, Vol. 30: 553, 553 (2002).
 See, e.g.,People v. Lantz, 186 Ill.2d 243, 255 (Reversing an appellate court decision that held that Illinois’s GBMI law violates due process).
 Kutys, Jennifer and Jennifer Esterman. Guilty but Mentally Ill (GBMI) vs. Not Guilty by Reason of Insanity (NGRI): An Annotated Bibliography. The American Society of Trial Consultants. The Jury Expert, 28. Available at http://www.thejuryexpert.com/wp-content/uploads/KutysTJENov2009.pdf (Last visited Feb. 19, 2014).
 See Jones v. US, 463 U.S. 354, 370 (1983).
 Silver, Eric. Demythologizing Inaccurate Perceptions of the Insanity Defense. American Psychiatric Association Journals, Law and Human Behavior, Vol. 18, No. 1: 63, 63 (1994).
 Hafemeister, Thomas and John Petrila. Treating the Mentally Disordered Offender: Society’s Uncertain, Conflicted, and Changing Views. Florida State University Law Review, Vol. 21: 729, 749-750 (1993); Shaefer, Michele and Joseph Bloom. The Use of the Insanity Defense as a Jail Diversion Mechanism for Mentally Ill Persons Charged with Misdemeanors. American Academy of Psychiatry Law Journal, Vol. 33: 79, 81 (2005).
 Ellis, James. The Consequences of the Insanity Defense: Proposals to Reform Post-Acquittal Commitment Laws. Catholic University Law Review, Vol. 35: 961, 1019 (1986).
 Reisner, Andrew, et al. Competency to Stand Trial and Defendants Who Lack Insight Into Their Mental Illness. American Academy Psychiatry Law Journal, Vol. 41: 85, 86 (2013).