Misperceptions about the insanity defense are common, as the chart demonstrates. Wyoming residents were asked to estimate what percentage of defendants entered NGRI pleas. Their estimates ranged from 13% to 57%. When the same group was asked to estimate the percentage of persons entering the plea who were so adjudicated, the estimates ranged from 19% to 44%. The actual results: "Of the 22,012 indicted defendants, 102 (0.46%) had presented the defense. Of these 102 defendants, only one (0.0045% of the 22,012) was found NGRI."
In a 1981 poll conducted by Roper Center for Public Opinion Research for NBC News/Associated Press, 87% of respondents said "yes" to the question: "Do you think that too many accused murderers are using the insanity defense to keep from going to prison, or don't you think so?" In a 1994 poll conducted by Roper for ABC News, 65% of men and 62% of women disagreed with the statement: "Most of the people who are found not guilty by reason of insanity really were insane when they committed the crime." In a 1993 Roper poll conducted for ABC News/Washington Post, 64% of men and 67% of women said the insanity defense should not be allowed when asked: "When people are put on trial for murder, do you think the courts should continue to allow them to plead 'not guilty by reason of insanity', or do you think the rules should be changed so that people charged with murder cannot use an 'insanity' defense?"
What is a civilized society supposed to do about mentally ill offenders who commit violent acts? In law, it is still the standard that a person who commits a crime as a result of mental illness should not be held criminally responsible because he lacks the criminal intent to commit the act. But the law, the medical establishment, and the public do not always see eye to eye. According to Christina Studebaker: "Insanity is a legal defense that is raised relatively infrequently, and rarely pleaded successfully." But a sizeable segment of the public is uneasy with the failure to assign responsibility and to punish the transgressor that seems to be part of an NGRI acquittal. This is, after all, the "get tough on crime" era. Nusbaum contends that the public does not mind quite as much when the defense is used and the trial results in a conviction, "yet if the trial results in a NGRI verdict the system has failed for allowing a 'wrong verdict' to come about. Quite possibly, as Dr. Loren Roth has suggested, 'the American public may simply be nothing more than a 'bad loser.'"
But it is also true that the American public does not want to see the perpetrator of an awful crime freely walking the streets. "One of the true ironies of our legal system is that the sicker you are, the less likely you are to be successful with the insanity defense," says attorney Roy Black, who has tried several insanity cases. "Especially with particularly horrific crimes, jurors want to know whether these people will ever get out. And the prospect of their getting out scares jurors to death" (quoted by Robinson).
Consider the horrific case of Andrea Yates. In March 2002, a panel of Texas jurors debated her fate. A devoted mother with a history of postpartum psychosis, hallucinations, and two suicide attempts, Yates admitted to drowning her five children in a bathtub. Prosecutors conceded that Yates was mentally ill but knew right from wrong and so was not legally insane at the time of the murders. In Texas, writes Timothy Roche, "the law on insanity defenses is among the most restrictive in the nation," and under the law, jurors could not be told that Yates would be hospitalized if she were found NGRI. The jury rejected her claim of mental illness, found her guilty, spared her the death penalty but sentenced her to life in prison. There, "she will be kept in protective custody because of her ongoing mental problems and possible threats from other inmates … Unless she needs intensive psychiatric care … [she] will eventually mingle with the general population at the prison known for housing some of the toughest, meanest women in Texas" (Roche).15 Yates's symptoms are controlled by medication.
We saw in the preceding panel how the clamor after Hinckley's NGRI acquittal brought the insanity defense under attack and how various "reforms" were enacted. Donald M. Linhorst, Ph.D., et al. evaluated three popular proposals for the disposition of mentally ill offenders: abolishing the insanity defense, substituting a guilty but mentally ill verdict, or retaining the insanity defense with a conditional-release community monitoring program (the authors favor the last option). The authors state:
"The three disposition options are influenced by the competing interests of the criminal justice and mental health systems. The criminal justice system seeks to protect public safety, while the primary goal of the mental health system is to treat and rehabilitate persons with mental illness. The balance between these competing interests is influenced by the political environment. The current conservative political environment has shaped statutory revisions and alternative policy options for mentally ill offenders and has generally promoted public safety over due process rights and treatment needs of mentally ill offenders."
Another often expressed concern is that criminals can fake insanity. How common is that? Miller says "most individuals accused of crime lack psychological sophistication" and are not likely to be able to fool the experts for long. Successful fakers may find themselves spending more time in a mental hospital than they would have spent in jail.
According to Maier: "Studies also suggest that the idea of a fraudulent resort to the insanity defense is a persistent myth. Between 70 and 90 percent of insanity cases end with the prosecutor agreeing the defendant is insane." In a 1996 study of the Baltimore Circuit Court, 8 of 60,432 indicted defendants pleaded NGRI. All eight pleas were uncontested by the state. Howard Zonana, medical director of the American Academy of Psychiatry and the Law, told the Washington Post that the Academy's studies have concluded that "the overwhelming majority" of defendants acquitted by reason of insanity suffer from schizophrenia or another mental illness. Such individuals are usually committed to treatment centers until it has been determined that they are no longer a danger. But can medical experts accurately predict who will commit dangerous acts in the future?
We know that state court caseloads are up. Let's see who is representing the indigent.
Sources: Chart: Data appear in a footnote in Daniel J. Nusbaum, "The craziest reform of them all: a critical analysis of the constitutional implications of 'abolishing' the insanity defense," Cornell Law Review, Sept 2002 v87 i6 p1509(64). Data are attributed in a footnote on page 1512 to George L. Blau and Richard A. Pasewark, Statutory Changes and the Insanity Defense: Seeking the Perfect Insane Person, 18 Law & Psychol. Rev. 679, 69 (1994. On the same page is the reference to Dr. Loren Roth, author of "Preserve but Limit the Insanity Defense," 58 Psychiatric Q, 91,91 (1986-87, and the quote from Christina Studebaker, Evaluating the Insanity Defense: Identifying Empirical and Moral Questions, 5 U. Chi. L. Sch. Roundtable 345,345 (1998). Ernest C. Miller, M.D., "The Insanity Defense: On Being Insane In Sane Places," http://www.dcmsonline.org/jax-medicine/1997journals/march97/insanitydefense.htm. Bryan Robinson, "Too Crazy to Be Insane: Horrific Crimes Are Often a Detriment to Insanity Cases," ABCNews.com, June 21, 2001, http://abcnews.go.com/sections/us/DailyNews/insanity010621.html. Timothy Maier, "One flew into the cuckoo's nest," Insight on the News, Sept 14, 1998 v14 n34 p10(4). Timothy Roche, "Andrea Yates: More to the Story," Time online, http://www.time.com/time/. Donald M. Linhorst and P. Ann Dirks-Linhorst, "A Critical Assessment of Disposition Options for Mentally Ill Offenders, Social Service Review, March 1999 v73 i1 p65(1). Criminal Justice/Mental Health Consensus Project, http://consensusproject.org/content/stat10. John P. Martin, "The Insanity Defense: A Closer Look," washingtonpost.com, February 27, 1998, http://www.washingtonpost.com/wp-srv/local/longterm/aron/qa227.htm. Mary Jo Curtis, "Inquiring Minds: Barry Wall on the mentally ill and the legal system," George Street Journal, February 8, 2002, http://www.brown.edu/Administration/George_Street_Journal/vol26/26GSJ17e.html. Information retrieved November 1, 2002.
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