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Insanity is a legal term, used to cover a wide ranging and frequently expanding list of mental health conditions and syndromes. Webster's dictionary defines insanity as a "deranged state of mind," lacking the "mental capacity required by law" to enter into certain agreements or "as removes one from criminal or civic responsibility." The insanity (and incompetence) defense therefore is the means by which a defendant may argue that he or she should not be held criminally liable (responsible) for breaking the law, as they were mentally ill or mentally incompetent at the time of their alleged criminal actions.

The insanity defense has its detractors as well as its supporters. Although a long established aspect of United States law coming out of the progressive reforms of the classical school, the insanity defense has frequently and regularly come under fire from virtually all sources including the general public, politicians, and elements of both the criminal justice and psychiatric health care systems (Linhorst & Linhorst, 1999).

This paper will frame this controversial issue by providing a brief summary of significant historical events, defining critical aspects of the issue as well as the parameters of the debate, examining the reasons given by those who support the insanity defense as well as the reasons offered by those who would like to see it abolished, and conclude with a "proposal" intended to accommodate, if not entirely satisfy, those that would maintain the "status quo" and the abolitionists. This proposal is not intended to be so detailed and comprehensive that it should be criticized from the standpoint of whether or not it could be implemented. Rather it is intended to establish certain critical factors that must be considered in any future compromise between these opposing forces while simultaneously pointing out the weaknesses in their current positions.

The use (and misuse) of the insanity defense has been the subject of extensive political, social, judicial and psychological debate since the days of the Roman Empire and early English law. It has evolved into one of the cornerstones of United States law, holding that "persons who commit crimes as a result of mental illness should not be held criminally responsible because they lack the criminal (mental) intent to commit the acts" (Moran, 1985). Still often referred to in its' original Latin form, the concept of "mens rea" means "guilty intention" or even more literally "guilty mind" (Moran, 1985).

The centuries of debate, punctuated and inflamed by headline-grabbing and emotion-evoking cases and trials, have failed to provide a satisfactory "solution" or conclusion to this complex and complicated issue. In the United States, each individual state retains the right to determine if and how the criminal justice system will deal with the "insanity defense." Currently in most states, defendants found "not guilty by reason of insanity" (NGRI), are evaluated as to their need for psychiatric treatment and are subsequently committed to hospitals or other designated healthcare institutions rather than "civil commitment" (jail) (Linhorst et al., 1999). Some states permit a period of "indefinite commitment" until the person is deemed "no longer dangerous to others." Other states limit the period of care to the amount of time the individual would have been incarcerated if found guilty of the crime (Linhorst et al., 1999). A few states now prohibit defendants (and their attorneys) from employing the insanity defense.

While case "disposition" varies among the states, those that maintain the validity of the insanity defense generally agree that for a person to successfully employ this defense he or she must meet one of the following three conditions (Fingarette, 1985).

Because of a mental disorder the defendant:

* Did not understand that what he or she was doing was illegal (wrong)

* Did not know what he or she was doing

* Was compelled to commit the crime by an irresistible force

Thus, if a jury believes (or is persuaded) that a defendant does have a mental illness, as

confirmed by expert testimony and evidenced and proven by meeting or satisfying one or more of these criteria, the jury is compelled to find the defendant "not guilty by reason of insanity" (NGRI) in some states or "guilty but mentally ill" (GMI) in others.

In terms of significant historical events, modern United States law regarding the insanity defense has its roots in a nineteenth century British decision. Known as the M'Naughten Rules, they were established as a result of an 1843-44 case concerning a Scottish woodworker, Daniel McNaughten, who killed the Prime Minister's Secretary Edward Drummond while attempting to assassinate the Prime Minister Robert Peel. At that time, the Judges of the House of Lords concluded that a person could not be guilty of a crime if he or she "either didn't know what they were doing, or didn't know what they were doing was wrong" (Simon & Aaronson, 1988). Although largely unchanged since that time, a variety of United States governmental acts and court decisions have continued to modify or "fine tune" these "rules."

Among the most notable of these is the "irresistible impulse" rule that argues that a person might know that the act they were committing was wrong, but were helpless to stop him or her self because of a mental impairment (Internet 1). Lorena Bobbit successfully utilized this defense in 1994, convincing the jury that an irresistible impulse led her to cut off her husband's penis. Other significant outcomes during the last half of the twentieth century include the Insanity Defense Reform Act (1984) qualifying but further confusing the issue by stating that the mental impairment must be "severe," the Substantial Capacity Test incorporating the concept of irresistible impulse into the previously held M'Naughten Rules, the Brawner Rule (1972) requiring jury trials and allowing the selected jury to decide the "insanity question" as they see fit, and Temporary Insanity proclaiming a defendant insane at the time of the act but now sane (Simon & Aaronson, 1988). A jury convinced that this is the case could acquit a defendant without any requirement for psychiatric treatment. Although first used in 1859 by Representative Daniel Sickles of New York after he killed Philip Barton Key, his wife's "secret" lover, this defense was popularized in the 1940's and 1950's. Since that time it has been used less frequently and with less success (Murdock & Navaski, 2002).

Providing a sort of ironic United States "bookend" to the McNaughten-Peel assassination attempt is the assassination attempt by John Hinckley Jr. on President Regan in 1982. Hinckley fired six times, wounding the President and three others. Hinckley claimed that he shot the President to impress actress Jodie Foster with whom he was infatuated. The Washington, D.C. jury acquitted Hinckley on thirteen counts of assault, murder and weapons charges. He was committed to a Washington area hospital for the criminally insane and remains there today. This decision caused such anger and concern that many states re-wrote their laws regarding the insanity defense and three states abolished it altogether (Fingarette, 1985).

Although somewhat obscured by the inherent complexity of the issue and further clouded by the legal terminology used to explain it, those who support the concept of the insanity defense appear to make four specific arguments in favor of its continued use. First, supporters point to other aspects of the system that distinguish between the intent (mens rea) and the physical act (actus reus) of committing a crime (Moran, 1985). For example, a person who accidentally hits someone while driving a car may be found guilty of negligence or manslaughter. However, if the prosecution could prove that the defendant intended to hit this particular person (victim) with this particular car (murder weapon) at this particular time (planned intent), the defendant could be charged with and ultimately found guilty of assault or murder. Even though the action and the result are identical, the verdict and penalty are dramatically different.

Cheryl Coleman, a professor and the prosecuting attorney in several insanity defense cases, provides an even clearer example of this important consideration. She explains, "If you're a high school kid and you go out drinking and you come in staggering and you throw up on the living room rug, your parents are going to be furious at you because you did something wrong. That's your fault, and it happened because you're responsible for the action. Whereas, if you come down with this horrible stomach virus that you didn't ask for and it can't be explained, or if you're God forbid, deadly sick and because of that you're nauseous and you're throwing up, your parents are going to understand that. The reason for that is, you're not responsible for your actions because you're sick" (Murdock & Navaski, 2002). Clearly, abolishing the insanity defense would mean eliminating the "mens rea" or mental condition element of our criminal justice system for determining responsibility and all of the other distinctions it contains such as differentiating between first-degree murder, second-degree murder, and manslaughter.

Secondly, supporters of the insanity defense point out that mental illness alone does not warrant acquittal. Credible, expert testimony must be provided in order to establish that the defendant suffers from a mental disorder(s), but defense attorneys must still prove that the defendant did not understand or did not know what he or she was doing when the crime was committed, or were driven to commit the crime by some powerful outside force (Moran, 1985). In other words, establishing that the defendant is or was mentally ill does not automatically equate to innocence. It does however, provide the defendant and the defense with the opportunity to prove that the mental disorder (see criteria above), as opposed to specific premeditated intent, is the reason for the crime.

Third, supporters are also quick to point out that defendants acquitted as a result of the insanity defense are not simply allowed to "go free." Often they are subject to hospitalization or other institutional commitment for a period of time that meets or even exceeds the incarceration period or other punishment had they simply been found guilty of the crime (Moran, 1985). Consequently, they conclude that the treatment and rehabilitation period that theoretically insures that the defendant can return to normal society and is no longer a danger to others is both substantial and appropriate punishment for the crime.

Finally, support for maintaining the insanity defense stems from studies that indicate that less than one percent of defendants in past criminal cases employed the defense, and only one quarter of these won acquittals (Moran, 1985). Follow up psychiatric evaluations, treatments and studies indicate that the vast majority of these did in fact suffer from schizophrenia or some other form of significant mental illness. Even in retrospect they conclude, it is evident that those acquitted were in fact mentally ill and, at least under current law, should not be held legally responsible (to the same extent as mentally well persons) for their actions (Linhorst et al., 1999). The aftermath of cases such as the convictions of Robert Tortorici and John Salvi, III underscore the problems associated with the "ignorance" of the jury and a prison system neither designed to nor capable of treating mentally ill (paranoid schizophrenia) inmates. The ultimate result in both cases was suicide (Murdock & Navaski, 2002).

On the other hand, detractors who favor abolishing the insanity defense have four equally specific reasons for doing so. Ironically and also demonstrating the complexity of the issue as well as the difficulty associated with reaching a compromise position, these reasons are, for the most part, a different view of the same picture. For example, the claim by supporters of the insanity defense that defendants do not go free but are evaluated and treated for their illness for a period that often exceeds the normal "jail time" associated with conviction, leads detractors to conclude that this defense is inherently unfair. "Why," they ask, "should those judged not guilty by reason of insanity be penalized in ways and for periods of time that exceed the punishment of those merely convicted of the crime" (Linhorst et al., 1999)?

Detractors also claim that "expert witnesses," if successful in convincing the jury that the defendant is mentally ill, have in fact reached a conclusion for the jury. Depending on the state in which the crime was committed and the case is being heard, and despite the criteria cited for demonstrating that the defendant was (is) mentally ill when the crime was committed, this conclusion leaves jurors with little choice but to find the defendant "not guilty by reason of insanity" or "guilty but mentally ill" (Moran, 1985). Such a verdict (conclusion) leads those in favor of abolishing the insanity defense directly back to the concerns expressed over the inherent fairness of the defense in terms of deciding guilt or innocence and punishment or treatment.

Furthermore, those not in favor of the insanity defense object to the claims of "low volume" and "low conviction rate" by supporters, suggesting instead that often these cases are the most glaring, most noteworthy, and most hideous of crimes (Moran, 1985). Consequently they conclude, hospitalization and treatment are inadequate measures (punishment) for defendants who have raped, brutalized, and/or murdered their innocent victims. These detractors also point to the continued anguish and suffering of the victim (if still alive) and the victim's family, who must reconcile their loss and their emotions with the judicial system's "decision" and society's ongoing care and required treatment of the perpetrator of the crime (Brownfield, 1994). Finally, detractors submit that the fact that something is used infrequently and often unsuccessfully, does not justify its continued use or existence (Murdock & Navaski, 2002).

Those in favor of abolishing the insanity defense also point to the seemingly growing tendency in our society to find a reason, sometimes a very creative reason, in one's past to excuse his or her current behavior (Moran, 1985). Lyle and Kyle Menedez were not convicted of murdering their parents even though they admitted to shooting them in "cold blood" while they slept. The brothers and their defense attorneys claimed that Lyle and Kyle had been so severely abused as children that their actions were "justifiable" to the extent that they were motivated by the abuses of the past (Brownfield, 1994).

There are several other "headline grabbing" examples of the use (and at least the potential for misuse) of the insanity defense. For example, although he ultimately chose to defend himself and claim that he did not commit the shootings witnessed by dozens of people on a Long Island train, Colin Ferguson's attorneys were preparing a defense based on "black rage." Such a defense would "excuse" Ferguson's behavior based on the fact that he was motivated by the injustices of the past and continued discrimination of the present against blacks in general and him (Ferguson) in particular (Murdock & Navaski, 2002). Jeffrey Dahmer, although later convicted in 1992 of murdering, mutilating and cannibalizing the bodies of fifteen young men, was originally sentenced to one year's probation on a sex-abuse charge in 1989 because the judge was concerned that he would not receive the right therapy if imprisoned (Brownfield, 1994).

Perhaps one of the most bizarre forms of the insanity defense was employed in the 1978 trial of Dan White, a former San Francisco councilman. Wishing to withdraw his previously submitted resignation, White was rebuffed by San Francisco Mayor George Moscone. Subsequently, White secured a revolver, used his knowledge of City Hall to avoid metal detection, shot the mayor dead in his office, and then proceeded down the corridor to the office of councilman Harvey Milk who he also shot dead because he believed that Milk had encouraged the Mayor not to reappoint him. White was charged with two counts of first-degree murder. At the trial however, forensic psychiatrist Dr. Martin Binder testified that when Dan White was depressed, which he obviously was at the time of the shootings, he gorged himself on junk foods high in carbohydrates including such well-known items as "Twinkies." Dr. Binder explained that the overindulgence in carbohydrate-rich foods led to a chemical imbalance in White's system that caused him to lose control and commit acts that he would never consider if his mental processes were normal. The jury returned a verdict of guilty of the lesser charge of manslaughter rather than first-degree murder. White spent five years in prison, was paroled, and committed suicide a year later (Riccio, 1997).

In each of these cases the public was outraged by the result. Even in other cases where the insanity defense "failed," such as the "Andrea Yates killing of her five children," the public outcry condemned the attempt to employ the insanity defense (Vatz & Weinberg, 2002). Of course, it must also be noted that the insanity defense is not only used in murder and "involuntary amputation" cases. An eight-state study funded by the National Institute of Mental Health revealed that while fifty percent of those pleading insanity were charged with violent crimes, only fifteen percent were charged with murder (Internet 1).

The ongoing debate and these sort of statistics have led some states to experiment with various forms of supervised community service type activity as a form of treatment and therapy for the hoped for rehabilitation of the defendant (Internet 2). This "conditional release" program is comparable to probation or parole for non-insanity defense violators in that they are allowed to reside in the community as long as they adhere to the conditions of release. Such conditions normally include some combination of taking prescribed medication, participating in outpatient psychiatric treatment programs, and refraining from illicit drug and alcohol use (Murdock & Navaski, 2002). While results seem to suggest that these efforts are meeting with some success, it is illogical to conclude that this concept could be applied with equal success to the admittedly infrequent but certainly more emotion generating cases as typified by Tortorici, Salvi, III, Bobbit, Ferguson, Dahmer, Yates, White, and Hinckley. Conversely, it is very logical to conclude that those wishing to continue the debate declare whether they are discussing property damage and auto theft or assassination attempts and the drowning of five babies. The approach and discussion that follows is aimed at the latter.

In order to deal with any issue as complex as the merits, use, and abuse of the insanity defense, the issue must first be reduced to its simplest form or its most essential facts. This effort not only simplifies the subject matter, but also removes (or at least minimizes) the emotional perspective that fuels controversy and leads to a hardening of positions. In other words, keep it simple and identify what can be agreed upon before dealing with disagreement. Since this has not been accomplished by either those wishing to maintain the insanity defense or those seeking to abolish it, arriving at a consensus agreement is at best impractical or, as the current status seems to suggest, perhaps impossible.

Thus, with clarity and simplicity as our objectives, our research reveals the following

facts about our criminal justice system and the insanity defense.

[1] The criminal justice system is a hybrid process involving state and federal agencies

[2] Laws, crimes, and punishments are clearly defined components of this system

[3] These elements of the system are designed to protect all members of society

[4] The system is essential to the social structure and social order

[5] The same crime may be prosecuted, defended, and punished differently from one state

to the next

[6] People should be accountable for their actions

[7] The concept of "mens rea" is essential to determining the criminal charge (degree),

guilt or innocence of the defendant, and subsequent punishment

[8] Mental disorders are legitimate illnesses that can result in misguided and uncontrolled


[9] The insanity defense has broadened from its "original" premise to include a variety

of syndromes used to excuse almost any behavior, thus obscuring the extent to which people can and should be held accountable for their actions.

[10] Defendants are entitled to a trial and a jury of their "peers"

In our search for a foundation upon which to build a consensus agreement, there can be few, if any, objections to items (1 - 5). Some might argue about the degree to which each item satisfies its objective (fulfills its mission), but if judged by purpose and intent consensus agreement should be accomplished with relative ease. The final five items (6 -10), are somewhat more controversial. It is in this "swirl of controversy" however, that the potential for resolution exists.

Although many of the previously highlighted cases as well as the prevailing attitudes in some corners of our society might seem to suggest otherwise, a fundamental principle of our social structure and our criminal justice system is the premise that people are accountable for their actions [6]. Obviously, the difficulty arises in attempting to determine if the person society wishes to hold accountable for his or her actions knew what they were doing at the time, and, even more importantly, if this should make any difference.

The argument must be made that the concept of "mens rea" cannot be used selectively [7]. Those who wish to abolish the insanity defense must, by definition, also be in favor of disregarding the mental aspect or intent behind any act. Returning to a previous analogy, someone who accidentally struck and killed a pedestrian with their car would be just as guilty of murder as an organized crime "hit man" who waited for that person to return home before putting a bullet between his or her eyes. Clearly this result would be both unfair and unjust. But more importantly, it is an argument that can be utilized effectively to gain consensus agreement that the "mens rea" requirement must remain part of our criminal justice system.

Having established that people should be held accountable for their actions and that criminal responsibility must include the mental (intent) as well as physical (action) capability to perform the act, it is imperative that we now reach agreement on the fact that mental disorders are legitimate illnesses that can result in misguided or uncontrolled behavior [8]. Psychological analysis and medical evidence would suggest that this is true.

Obviously, the problem arises in attempting to determine what is a "legitimate" mental illness [9]. The jury thought that Dan White's carbohydrate overload to compensate for his depression was a legitimate mental illness. Another jury concluded that Lyle and Kyle Menendez were suffering from the affects of the abuse they endured at the hands of their parents, a condition that caused the boys to murder their parents while they slept. Had it been used as a defense, another jury might have decided that Colin Ferguson was suffering from "black rage" when he opened fire on Long Island commuters. Clearly this issue becomes a question of where and by whom the "line is drawn." Consider that all behavior is motivated by something, and that the medical industry has defined many conditions or syndromes, such as alcoholism and obesity, as legitimate illnesses. If someone is an alcoholic and commits a violent crime in a drunken rage, should he or she be convicted of the crime or judged "not guilty by reason of alcohol?" (NGRA). If someone is so overweight that they cannot resist stealing food, should he or she be convicted of the crime or judged "not guilty by reason of fat?" (NGRF)

Trial case history suggests that it is possible for creative, eloquent and talented defense attorneys to convince a jury of almost anything. This is one reason why they demand and, according to our current criminal justice system defendants are entitled to, a trial by a jury of their peers [10]. If we are to achieve consensus agreement on the issue of the insanity defense, this is a critical concern. Logic dictates that once an attorney and a defendant choose the insanity defense, it is impossible to assemble a jury of his or her peers. Consequently, the criminal justice system must pursue an "alternate" path.

This suggestion is not as radical as it may initially seem. In virtually every other aspect of our daily lives and our social structure as well, the decision to take one course of action prevents us from simultaneously pursuing another. For example, a person cannot choose to go to college to study psychology or seek an engineering degree and pursue a career as a hair stylist at the same time. Perhaps American Poet Laureate Robert Frost said it best in a poem we have all read and studied at one time or another, "The Road not Taken."

Two roads diverged in a yellow wood and sorry I could not travel

both and be one traveler...

I took the one less traveled by and that has made all the difference.

Undeniably, the road taken does make all the difference. Once this premise is accepted, it will be possible to gain consensus agreement that choosing the insanity defense should place the defendant (and defense attorneys) on a different path. All other elements and protocols of the existing system can remain intact. However, instead of a jury of his or her peers, the defendant must convince an appointed panel comprised of some combination of judges, psychologists and psychiatrists that his or her actions were the result of a mental illness that either caused them to commit the crime or prevented them from knowing and understanding what they were doing at the time.

This compromise position is proposed because neither those in favor of continuing the insanity defense nor those in favor of abolishing it have made logical enough or sound enough or compelling enough arguments to support their position. On the contrary, they have polarized and confused the issue to the point where those who would allow it to continue seem also in favor of allowing it to spin wildly and unlimitedly out of control, while those who would abolish it seem unyieldingly rigid and willing to do away with virtually all individual rights to accomplish their objective.

Consider the benefits of this "compromise" proposal, framed by the four critical issues we established earlier. First, the principle of "mens rea" remains unchallenged. It will not be eliminated as the insanity defense abolitionists require (whether they realize it or not), nor will it be allowed to expand without limits to include every imaginable excuse for every imaginable behavior. In choosing to establish insanity as defense, the defendant and his or her attorneys must still establish that he or she is (or was) mentally ill and that this illness was responsible for the criminal behavior. Guilt or innocence is no longer an issue. By claiming insanity, guilt (the crime was committed by the person so charged) is acknowledged. In other words, guilty but mentally ill (GMI) is the defendant's plea, not a jury's decision.

Secondly, since guilt is already established by the plea, the jury (panel of appointed experts) will be hearing testimony designed solely to prove insanity (mental illness). Their judgment will be based on the same criteria that exist now. If insanity is not proven, say for example in the Dan White or Menendez cases, the panel could return a verdict of guilty. The defense would have the option of appeal, as they do now, and could even demand a trial by a "jury of their peers," but the insanity defense would no longer be available to them.

Clearly, the panel's "decision" ties directly into the third critical issue. No defendant claiming insanity would be allowed to "go free." Based on the credible expert testimony they have heard, the panel will first decide if the insanity plea is valid and if it is, recommend they type and duration of "treatment" that the defendant requires. Depending on a number of other significant factors such as the nature of the crime, the nature of the mental illness, the potential for recovery, etc., this treatment may or may not include conditional release, permanent treatment (incarceration), or the opportunity to eventually return to society. For example, if the panel was convinced that Andrea Yates was insane when she murdered her five children, they are also likely to conclude that such a crime could not have been caused by a mental illness from which she was likely to recover at some point in the future. In other words, she would be given "life in treatment without the possibility of release," a similar sentence to "life in prison without the possibility of parole."

Finally, the idea that the volume of cases should have something to do with determining the validity of either the insanity defense as a concept or its current status in our criminal justice system, would be disregarded. The fact that something occurs or is successful infrequently is not a reason to support its existence. Furthermore, in those instances where the crime is so heinous and surviving family members still suffer, at least the issue of guilt is not in question and if the insanity defense fails, the defendant's only recourse will be to return to the "normal" system where he or she will be judged without the availability of the insanity defense.

In conclusion, it must be noted that there are still many more questions to be answered and issues to be resolved before a proposal such as this can be implemented. For example, who appoints the panel? How often do panel members change? How are they compensated? Is it a state, district, or federal court? Is a constitutional amendment required? Recognizing that these and other questions like them remain unanswered at this point, this proposed solution is actually intended to serve another purpose. It points out the weaknesses and abuses in the current criminal justice system, at least in so far as the insanity defense is concerned. It demonstrates the flaws in the positions taken and arguments made by supporters and detractors of the insanity defense. Finally, it defines the criteria that any compromise solution must address in determining the future of the insanity defense. In so doing it emphasizes the need for change in a system and a concept that is currently failing the social structure (order) and society (members) it purports to preserve and protect.