Sifting Patient from Prisoner
The defensibility of the insanity defense
By Andrew. P. Oakland
Washington D.C., 1981—an obsession turns murderous. A failed songwriter, infatuated with actress Jodie Foster, fires six shots at President Ronald Reagan in a desperate attempt to win her affection. He misses, but the act does not go unnoticed. A year later he stands trial for thirteen criminal counts, including assault with a dangerous weapon, assault with intent to kill, and attempted murder.
Though the love-stricken lad's guilt was unequivocal—the whole episode was caught on tape—the consequences Hinckley would face were very much not. You see, John Hinckley pleaded insanity. Sure, he tried to assassinate the president, but that's not quite the point, argued his lawyers. What rendered traditional jurisprudence inappropriate, they insisted, was that Hinckley's obsession with Foster so distorted his thinking that he became incapable of grasping the nature of his crime. The prosecution, on the other hand, was less sympathetic. This was merely a case of poor judgment, they demurred: Hinckley had a realistic idea of his chances with the actress, whom he had never actually met, and should be punished for his deeds.
The defense's argument won out. After four days of deliberating, the jury concluded that reasonable doubt remained as to Hinckley's capacity to reason or to conform to the law, and he was exonerated from all charges with a verdict of "not guilty by reason of insanity" (NGRI).
Hinckley's acquittal evoked near-universal outrage. New York Times columnist Russell Baker, one voice among a fierce chorus, wrote that, "[f]or an exercise in legal absurdity it would be hard to improve on the trial of John W. Hinckley Jr." The American Medical Association even recommended that insanity provisions in the criminal justice system be dismantled. Dismay resonated beyond the experts and pundits, too. According to a poll conducted by ABC News the day after the verdict was handed down, 83% of Americans felt that "justice was not done," despite the fact that Hinckley had been placed in supervised psychiatric care indefinitely.
Congress finally made concessions to the pitchfork-wielding mob with the Insanity Defense Reform Act of 1984. This legislation limited the sanctuary of the insanity defense to defendants who could demonstrate that, at the time of the crime, they could not appreciate the nature or wrongfulness of their acts "as a result of mental disease or defect". Criminal responsibility became tantamount to having a cognitive handle on one's behavior and its consequences. The precedent of pardoning someone driven by compulsion generated by mental disease (a so-called "irresistible impulse") had been abandoned. Moreover, the 1984 act saddled the defense with the burden of proof, a significant departure from the law as it stood for the Hinckley case. Many states followed with similar laws hindering a breezy exculpation. Four of them, Montana, Idaho, Utah, and later Kansas, dispensed with the insanity defense altogether, letting the defendant's mental state mitigate sentencing, not the verdict.
Arbitrating mental illness and criminal responsibility isn't so straightforward. To warrant unreserved punishment, most laws currently insist on both a guilty action and an accompanying "guilty mind"—the mens rea. When confronted with the insanity defense, the court must decide if the defendant was capable of bearing this guilty mind at the time of the crime. The focus then becomes accountability, not guilt. (Notice the tacit assumption here of the mens rea accompanying the misdeeds of ordinary, rational citizens.)
Since mental state during the crime is the pivotal element under scrutiny, formal diagnosis of a mental disorder in the defendant is neither necessary nor sufficient to yield a verdict of NGRI. Indeed, the law explicitly forbids reliance on medical diagnoses, which can often be messy and contentious. If the defense does invoke mental illness to buttress claims about the defendant's reasoning, the disorder cannot have its primary manifestation in antisocial or illegal behavior. This provision precludes the argument that committing certain crimes is itself insane, which would in principle extend the net of the insanity defense to every common delinquent.
The task of determining whether a defendant was too "insane" at the time of the crime falls to psychiatrists, who then testify as expert witnesses. Through personal interviews and appraisal of the defendant's behavior, psychiatrists assess the defendant's capacity to reason, and hence his ability to infer the consequences of his actions. Scientific as it may seem, expert witnesses need not necessarily agree. Naturally, psychiatrists hired by the defense usually attest to the lack of mental capacity during the crime, while those working for the prosecution use the evidence to draw different conclusions.
This tension was particularly striking in the Hinckley case. Dr. William Carpenter, lead psychiatrist for the defense, testified that Hinckley suffered from schizophrenia and was consequently unsure of his identity. This led him to take on fragments of other identities, such as Robert DeNiro's character from the movie Taxi Driver, who was in love with the character portrayed by Jodie Foster. Dr. Park Dietz, psychiatrist for the prosecution, however, testified that Hinckley was merely star-struck; his meticulous planning for the assassination and recent jaunts around the country on commercial airlines showed that he knew exactly what he was doing.
Among such incongruous statements by expert witnesses, lay jurors must decide for themselves which psychiatrists to believe. They must also take care to ignore tendentious but legally insignificant statements like: "How could someone think that killing the President would impress a woman unless that person were insane?" Further, they are expected to make informed decisions when their knowledge of the implications of each verdict may be incomplete. Jurors may not recognize the legal subtleties involved in the insanity defense or they may believe that the streets would be safer with the defendant committed to jail instead of a psychiatric hospital. Even if convinced of a defendant's insanity, they may believe that he would be let out promptly, unaware that people found NGRI often serve more time in psychiatric care then they would have in prison. Stigma against or fear of the mentally ill could also color a jury's verdict.
The process may be faulty, but that isn't its most uncomfortable problem, considering that contradictory testimony, murky legal consequences, and personal prejudice can afflict jurors in any high-stakes case. Instead, the difficulty is deeper. Intuition suggests that there is something fundamentally different between someone who murders his wife because he hates her and one who murders her because he thought she was a demon spirit. Intellect wavers, however, in dealing with these differences. After all, if a sane person and an insane person commit the same crime, shouldn't they be treated equally under the law?
In an effort to reconcile these issues, some states have inducted a new verdict into their repertoire: "guilty but mentally ill" (GBMI). Though touted as a compromise between NGRI and the standard guilty verdict, GBMI has spurred controversy itself, as the outcome tends to be far from intermediary. Defendants found GBMI are sentenced just as those found guilty in the proper sense, but with further restrictions placed on parole, prison ward assignment, and rewards for good behavior. In essence, they serve double-duty for committing a crime and for being mentally ill.
For this reason, the American Psychiatric Association (APA) argues against supplementing the jury's arsenal with GBMI. But they also condemn the verdict on more theoretical grounds: "[GBMI] compromises one of our criminal system's most important functions—deciding, through its deliberations, how society defines responsibility," they wrote in a statement. "A 'guilty but mentally ill' plea absolves the judge or jury of this obligation." Indeed, controlled studies show that mock juries often use GBMI as a shortcut in order to avoid the taxing debate between holding someone responsible for her actions and accepting a plea of insanity.
Hanging onto this social covenant on which individuals have rational control over their actions becomes increasingly important as scientific inquiry into the nature of free will and decision-making continues. We see a manifest difference between the legal status of ordinary citizens and the mentally ill. But on this matter, science comes up short. For it seems that, at some level, we are all just deterministic slaves to our nervous system, mentally ill or not. Fortunately, this definition of rationality and free will isn't the one we operate on when it comes to assigning criminal responsibility: in issuing punishment, we hold standards on the types of cognitive faculties possessed by the offender—not on the nature of his neurobehavioral causation. If science doesn't furnish an answer to the question of criminal responsibility, then, we can't abdicate our duty to decide on moral grounds.