- Insanity defense
Criminal defenses Part of the common law series Insanity · Immunity · Mental disorder
Intoxication · Infancy
Automatism · Alibi
Consent · Mistake
Duress · Necessity
False confession · Entrapment
Criminal law and procedure
Other common law areas Criminal · Contract · Tort
Property wills · Trusts and estates
Portals Law · Criminal justice
In criminal trials, the insanity defense is where the defendant claims that he or she was not responsible for his or her actions due to mental health problems (psychiatric illness or mental handicap). The exemption of the insane from full criminal punishment dates back to at least the Code of Hammurabi. There are different views of the insanity defense, each of which has its merits. Some view it as a status defense; some see it as relating to lack of mens rea; others see it as an excuse. There are different definitions of legal insanity, which is a legal term of art, not a medical term. There are the M'Naghten Rules, the Durham Rule, the Americal Legal Institute definition, and various miscellaneous provisions (e.g. relating to lack of mens rea). The chief distinction of the M'Naghten Rules is that there is no volitional limb - that is to say that irresistible impulse is not part of the M'Naghten Rules definition of insanity.
In the United Kingdom, Ireland, and the United States, use of the defense is rare; since the Criminal Procedure (Insanity and Fitness to Plead) Act of 1991 , insanity pleas have steadily increased in the UK, but it is more common to rely upon a state of temporary mental impairment. In the United States, this is not a legal defense, but a mitigating factor referred to as diminished responsibility (or diminished capacity). Mitigating factors, including things not eligible for the insanity defense like intoxication, may lead to reduced charges or reduced sentences. Lesser degrees of mental impairment may be reflected in sentencing or the partial defence of diminished responsibility, which results in a manslaughter rather than murder conviction.
The insanity defense is based on evaluations by forensic mental health professionals that the defendant was incapable of distinguishing between (legal) right and wrong or appreciating the nature of his or her actions at the time of the offense. Some jurisdictions require the evaluation to address the defendant's ability to control his or her behavior at the time of the offense (the volitional limb). A defendant claiming insanity is pleading "not guilty by reason of insanity" (NGRI) or "guilty but insane/mentally ill" in some jurisdictions which, if successful, may result in the defendant being committed to a psychiatric facility for an indeterminate period.
Diminished responsibility or diminished capacity can be employed as a mitigating factor or partial defence to murder and, in the United States, is applicable to more circumstances than the insanity defense. For example, some jurisdictions accept inebriation or other drug intoxication as mitigating factors, but do not accept intoxication as an insanity defense on its own. If diminished responsibility or capacity is presented convincingly, the charges may be reduced to the lesser offense of manslaughter or the sentence may be more lenient.
The United States Supreme Court (in Penry v. Lynaugh) and the United States Court of Appeals for the Fifth Circuit (in Bigby v. Dretke) have been clear in their decisions that jury instructions in death penalty cases that do not ask about mitigating factors regarding the defendant's mental health violate the defendant's Eighth Amendment rights, saying that the jury is to be instructed to consider mitigating factors when answering unrelated questions. This ruling suggests specific explanations to the jury are necessary to weigh mitigating factors.
Withdrawal of successful insanity defense
Several cases have ruled that persons found not guilty by reason of insanity may not withdraw the defense in a habeas petition to pursue an alternative. However, other rulings have allowed it. In State v. Connelly, 700 A.2d 694 (Conn. App. Ct. 1997), for example, the petitioner who had originally been found not guilty by reason of insanity and committed for ten years to the jurisdiction of a Psychiatric Security Review Board filed a pro se writ of habeas corpus and the court vacated his insanity acquittal. He was granted a new trial and found guilty of the original charges, receiving a prison sentence of 40 years.
Refusal of insanity defense
In the landmark case of Frendak v. United States, the court ruled that the insanity defense cannot be imposed upon an unwilling defendant if an intelligent defendant voluntarily wishes to forego the defense. This is not the case in England and Wales, where the prosecution can argue for an insanity defence. This is a tactic used when the defendant is presenting a defence of sane automatism, when the prosecution believes that the condition amounts to insane automatism (usually on the grounds of an internal cause).
Those found to have been not guilty by reason of insanity are generally then required to undergo psychiatric treatment, except in the case of temporary insanity (see below). Defendants found not guilty by reason of insanity are generally placed in a mental institution. Unlike defendants who are found guilty of a crime, they are not institutionalized for a fixed period, but rather held in the institution until they are determined not to be a threat. Authorities making this decision tend to be cautious, and as a result, defendants can often be institutionalized for longer than they would have been incarcerated in prison. In Foucha v. Louisiana (1992) the Supreme Court of the United States ruled that a person could not be held "indefinitely".
So far, in the United States, those acquitted of a federal offense by reason of insanity have not been able to challenge their psychiatric confinement through a writ of habeas corpus or other remedies. In Archuleta v. Hedrick, 365 F.3d 644 (8th Cir. 2004), the U.S. Court of Appeals for the Eighth Circuit the court ruled persons found not guilty by reason of insanity and later want to challenge their confinement may not attack their initial successful insanity defense:
The appellate court affirmed the lower court’s judgment: "Having thus elected to make himself a member of that ‘exceptional class’ of persons who seek verdicts of not guilty by reason of insanity...he cannot now be heard to complain of the statutory consequences of his election." The court held that no direct attack upon the final judgment of acquittal by reason of insanity was possible. It also held that the collateral attack that he was not informed that a possible alternative to his commitment was to ask for a new trial was not a meaningful alternative.
Incompetency and Mental Illness
An important distinction to be made is the difference between competency and criminal responsibility.
- The issue of competency is whether a defendant is able to adequately assist his attorney in preparing a defense, make informed decisions about trial strategy and whether or not to plead guilty or accept a plea agreement. This issue is dealt with in UK law as "fitness to plead".
- Criminal responsibility, however, deals with whether a defendant can be held legally responsible for his criminal behavior.
Competency largely deals with the defendant's present condition, while criminal responsibility addresses the condition at the time the crime was committed.
In the United States, a trial in which the insanity defense is invoked typically involves the testimony of psychiatrists or psychologists who will, as expert witnesses, present opinions on the defendant's state of mind at the time of the offense. Mental health practitioners are restrained from making a judgment on the issue of whether the defendant is or is not insane or what is known as the "ultimate issue".
As a legal defense, insanity is a legal concept, not a psychiatric concept. Whether a person has a diagnosed mental disorder is not sufficient reason, from the court's point of view, to relieve him or her from all responsibility for illegal acts he or she may commit - nor does the person have to have a psychiatric disorder to be considered insane. In English, a 'disease of mind' is required, which is any disease that affects the capacity of the person - thus diabetes, cerebrovascular disease, or a brain tumour can be considered 'diseases of mind'. A person may have a mental disorder and be a competent person in many other ways: able to write checks, handle personal affairs, hold a job, and carry on a variety of behaviors despite the mental disorder. Likewise, a person may commit a criminal act, independent of the fact that he or she has a mental disorder. Depending on the jurisdiction, other elements need to be proven for the court to accept that the mental disorder was responsible for the criminal act; that is, it must be shown that the defendant committed the crime because of the mental disorder - for example, the mental disorder interfered with his or her ability to determine right from wrong at the time the offense was committed.
It would unduly stigmatize a person with a diagnosed mental illness to say that because of the mental illness he is not responsible for his behavior. Therefore, a person whose mental disorder is not in dispute is determined to be sane if the court decides that despite a "mental illness" the defendant was responsible for the acts he or she committed and that he or she will be treated in court as a normal defendant. If the person has a mental illness and it is determined that the mental illness interfered with the person's ability to determine right from wrong (and other associated criteria a jurisdiction may have) and if the person is willing to plead guilty or is proven guilty in a court of law, some jurisdictions have an alternative option known as either a Guilty but Mentally Ill (GBMI) or a Guilty but Insane verdict. The GBMI verdict is available as an alternative to, rather than in lieu of, a "not guilty by reason of insanity" verdict. Michigan (1975) was the first state to create a GBMI verdict, after two prisoners released after being found NGRI committed violent crimes within a year of release, one raping two women and the other killing his wife.
Sometimes a person without mental illness can be found to be insane; for example, a person who was in a medical state of delirium at the time of the crime, or a person who is acting under the influence of a drug that was involuntarily administered (though voluntary intoxication has been rejected by most jurisdictions as a defense to crime).
History of the insanity defense
The concept of defense by insanity has existed since ancient Greece and Rome. However, in colonial America a delusional Dorothy Talbye was hanged in 1638 for murdering her daughter, as at the time Massachusetts's common law made no distinction between insanity (or mental illness) and criminal behavior. Edward II, under English Common law, declared that a person was insane if his or her mental capacity was no more than that of a "wild beast" (in the sense of a dumb animal, rather than being frenzied). The first complete transcript of an insanity trial dates to 1724. It is likely that the insane, like those under 14, were spared ordeal by trial. When trial by jury replaced this, the jury members were expected to find the insane guilty but then refer the case to the King for a Royal Pardon. From 1500 onwards, juries could acquit the insane, and detention required a separate civil procedure (Walker, 1985) . The Criminal Lunatics Act 1800, passed with retrospective effect following the acquittal of James Hadfield, mandated detention at his or her majesty's pleasure (indefinitely) even for those who although insane at the time of the offence were now sane.
The M'Naghten Rules of 1843 were not a codification or definition of insanity but rather the responses of a panel of judges to hypothetical questions posed by Parliament in the wake of M'Naghten's acquittal for the homicide of Edward Drummond, who he mistook for British Prime Minister Robert Peel. The rules define the defense as "at the time of the commission of the acts constituting the offense, the defendant as a result of a severe mental disease or defect, was unable to appreciate the nature and quality of the wrongfulness of his acts." The key is that the defendant could not appreciate the nature of his actions during the commission of the crime.
In Ford v. Wainwright 477 U.S. 399 (1986), the US Supreme Court upheld the common law rule that the insane cannot be executed. It further stated that a person under the death penalty is entitled to a competency evaluation and to an evidentiary hearing in court on the question of his competency to be executed. In Wainwright v. Greenfield, the Court ruled that it was fundamentally unfair for the prosecutor to comment during the court proceedings on the petitioner's silence invoked as a result of a Miranda warning. The prosecutor had argued that the respondent's silence after receiving Miranda warnings was evidence of his sanity.
Controversy over the insanity defense
The public tends to believe that the insanity defense is used more often than it actually is, possibly because insanity defense cases tend to be of a high-profile nature and the evidence in those cases tends to overwhelmingly implicate the defendant, giving the perception of the insanity defense being used as a last resort. The insanity plea is used in the U.S Criminal Justice System in less than 1% of all criminal cases. Much information is unknown about the criminal justice system and the mentally ill:
It should be noted, however, that there is no definitive study regarding the percentage of people with mental illness who come into contact with police, appear as criminal defendants, are incarcerated, or are under community supervision. Furthermore, the scope of this issue varies across jurisdictions. Accordingly, advocates should rely as much as possible on statistics collected by local and state government agencies.
Some U.S. states have begun to ban the use of the insanity defense, and a 1994 Supreme Court ruling upheld the right of Montana to do so. Idaho, Kansas, and Utah have also banned the defense. In 2006, the Supreme Court decided Clark v. Arizona upheld Arizona's limitations on the insanity defense.
Rules of appreciation
In this section, various rules applied in United States jurisdiction with respect to insanity defenses are discussed.
The M'Naghten Rules
The guidelines for the M'Naghten Rules (1843) 10 C & F 200, state, inter alia, and evaluating the criminal responsibility for defendants claiming to be insane were settled in the British courts in the case of Daniel M'Naughten in 1843. M'Naughten was a Scottish woodcutter who murdered the secretary to the prime minister, Edward Drummond, in a botched attempt to assassinate the prime minister himself. M'Naughten apparently believed that the prime minister was the architect of the myriad of personal and financial misfortunes that had befallen him. During his trial, nine witnesses testified to the fact that he was insane, and the jury acquitted him, finding him "not guilty by reason of insanity."
The House of Lords asked the judges of the common law courts to answer five questions on insanity as a criminal defence, and the formulation that emerged from their review—that a defendant should not be held responsible for his actions only if, as a result of his mental disease or defect, he (i) did not know that his act would be wrong; or (ii) did not understand the nature and quality of his actions—became the basis of the law governing legal responsibility in cases of insanity in England. Under the rules, loss of control because of mental illness was no defense. The M'Naughten rule was embraced with almost no modification by American courts and legislatures for more than 100 years, until the mid-20th century. In 1998, 25 states plus the District of Columbia still used versions of the M'Naughten rule to test for legal insanity.
One of the major criticisms of the M'Naughten rule is that, in its focus on the cognitive ability to know right from wrong, it fails to take into consideration the issue of control "irresistible impulse". Psychiatrists agree that it is possible to understand that one's behavior is wrong, but still be unable to stop oneself. To address this, some states have modified the M'Naughten test with an "irresistible impulse" provision, which absolves a defendant who can distinguish right and wrong but is nonetheless unable to stop himself from committing an act he knows to be wrong. (This test is also known as the "policeman at the elbow" test: Would the defendant have committed the crime even if there were a policeman standing at his elbow?).
The Durham/New Hampshire Test
The strict M'Naghten standard for the insanity defense was used until the 1950s and the Durham v. United States case. In the Durham case, the court ruled that a defendant is entitled to acquittal if the crime was the product of his mental illness (i.e., crime would not have been committed but for the disease). The test, also called the Product Test, is broader than either the M'Naghten test or the irresistible impulse test. The test has much more lenient guideline for the insanity defense, but it addressed the issue of convicting mentally ill defendants, which was allowed under the M'Naghten Rule. However, the Durham standard drew much criticism because of its expansive definition of legal insanity.
American Law Institute Model
The Model Penal Code, published by the American Law Institute, provided a standard for legal insanity that was a compromise between the strict M'Naghten Rule, the lenient Durham ruling, and the irresistible impulse test. Under the MPC standard, which represents the modern trend, a defendant is not responsible for criminal conduct "if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law." The test thus takes into account both the cognitive and volitional capacity of insanity.
The Brawner rule
The Brawner Rule, from the case of United States v. Brawner, 471 F.2d 969 (1972) by the United States Court of Appeals for the District of Columbia Circuit, set aside the Durham ruling arguing the ruling’s requirement that a crime must be a “product of mental disease or defect” placed the question of guilt on expert witnesses and diminished the jury’s role in determining guilt. Under this proposal, juries are allowed to decide the "insanity question" as they see fit. Basing its ruling on the American Law Institute’s (ALI) Model Penal Code, the court ruled that for a defendant not to be criminally guilty for a crime the defendant, “(i) lacks substantial capacity to appreciate that his conduct is wrongful, or (ii) lacks substantial capacity to conform his conduct to the law.”
It is noteworthy that this case was (1) decided by the U.S. Court of Appeals for the District of Columbia circuit and not the United States Supreme Court, and is thus not a national precedent, and (2) not based on constitutional arguments and was thus superseded by Congress in 1984 with the Insanity Defense Reform Act of 1984.
The Insanity Defense Reform Act of 1984
After the perpetrator of President Reagan's assassination attempt was found not guilty by reason of insanity, Congress passed the Insanity Defense Reform Act of 1984. Under this act, the burden of proof was shifted from the prosecution to the defense and the standard of evidence was increased from a preponderance of evidence to clear and convincing evidence. The ALI test was discarded in favor of a new test that more closely resembled M'Naughten's. Under this new test only perpetrators suffering from severe mental illnesses at the time of the crime could successfully employ the insanity defense. The defendant's ability to control himself or herself was no longer a consideration.
The Act also curbed the scope of expert psychiatric testimony and adopted stricter procedures regarding the hospitalization and release of those who found not guilty by reason of insanity.
The substantial capacity test
The substantial capacity test was defined by the American Law Institute, in its Model Penal Code. This argues that insanity should be defined as a lack of substantial capacity to control one's behavior. Substantial capacity is defined as "the mental capacity needed to understand the wrongfulness of [an] act, or to conform ... behavior to the ... law." This is related to the M'Naghten Rule and the idea of irresistible impulse.
The notion of temporary insanity argues that a defendant was insane, but is now sane. A defendant found to have been temporarily insane will often be released without any requirements of psychiatric treatment. This defense was first used by U.S. Congressman Daniel Sickles of New York in 1859 after he had killed his wife's lover, Philip Barton Key, but was most used during the 1940s and 1950s. Another case around that time was that of Charles J. Guiteau, who assassinated President James Garfield in 1881.
The Scottish Law Commission, in its Discussion Paper No 122 on Insanity and Diminished Responsibility (2003),  pp. 16/18 confirms that the law has not substantially changed from the position stated in Hume's Commentaries:
- We may next attend to the case of those unfortunate persons, who have plead the miserable defense of idiocy or insanity. Which condition, if it is not an assumed or imperfect, but a genuine and thorough insanity, and is proved by the testimony of intelligent witnesses, makes the act like that of an infant, and equally bestows the privilege of an entire exemption from any manner of pain; Cum alterum innocentia concilii tuetur, alterum fati infelicitas excusat. I say, where the insanity is absolute, and is duly proved: For if reason and humanity enforce the plea in these circumstances, it is no less necessary to observe a caution and reserve in applying the law, as shall hinder it from being understood, that there is any privilege in a case of mere weakness of intellect, or a strange and moody humor, or a crazy and capricious or irritable temper. In none of these situations does or can the law excuse the offender. Because such constitutions are not exclusive of a competent understanding of the true state of the circumstances in which the deed is done, nor of the subsistence of some steady and evil passion, grounded in those circumstances, and directed to a certain object. To serve the purpose of a defense in law, the disorder must therefore amount to an absolute alienation of reason, ut continua mentis alienatione, omni intellectu careat - such a disease as deprives the patient of the knowledge of the true aspect and position of things about him - hinders him from distinguishing friend from foe - and gives him up to the impulse of his own distempered fancy.
The phrase "absolute alienation of reason" is still regarded as at the core of the defense in the modern law (see HM Advocate v Kidd (1960) JC 61 and Brennan v HM Advocate (1977) JC 38).
The judicial system of Sweden is unusual in that it has no provisions for insanity defense. Instead, courts can sentence mentally ill defendants to involuntary commitment.
Usage and success rate
Media coverage in the United States tends to dictate how situations are perceived by the public. A case using the insanity defense usually receives increased media attention because it is considered unusual or dramatic. This increased coverage gives the impression that the defense is widely used, but this is not the case. According to an eight-state study, the insanity defense is used in less than 1% of all court cases and, when used, has only a 26% success rate. Of those cases that were successful, 90% of the defendants had been previously diagnosed with mental illness.
- Settled insanity
- Frendak v. United States
- Archuleta v. Hedrick
- Diminished responsibility
- Mental disorder defence
- Intoxication defence
- Twinkie defense
- United States federal laws governing offenders with mental diseases or defects
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- Mackay, RD (1995) Mental Condition Defences in the Criminal Law, Oxford: Clarendon Press.
- Camarillo State Mental Hospital history (largest mental asylum west of Mississippi and home to many criminals who used the insanity defense, open 1936 - 1997, housing 7,000 patients at a time
- Frontline—From Daniel M'Naughten to John Hinckley: A Brief History of the Insanity Defense
- Evolution of the Insanity Plea
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