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.[citation needed] There are different definitions of legal insanity, such as the M'Naghten Rules, the Durham Rule, the American Legal Institute definition, and various miscellaneous provisions (e.g. relating to lack of mens rea).[1] .
In the United Kingdom, Ireland, and the United States, use of the defense is rare[2]; however, since the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 [3], insanity pleas have steadily increased in the UK[4] . Mitigating factors, including things not eligible for the insanity defense like intoxication[citation needed] (or, more frequently, diminished capacity), may lead to reduced charges or reduced sentences.
The insanity defense is based on evaluations by forensic mental health professionals with the appropriate test according to the jurisdiction. Their testimony guides the jury, but they are not allowed to testify to the accused's criminal responsibility, as this is a matter for the jury to decide. Similarly, 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".[5]
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.
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.
Diminished responsibility or diminished capacity can be employed as a mitigating factor or partial defense to crimes and, in the United States, is applicable to more circumstances than the insanity defense. Where it is a partial defense, it has the effect of reducing the charge to manslaughter. The Homicide Act 1957 is the statutory basis for the defense of diminished responsibility in England & Wales, whereas in Scotland it is a product of case law. The number of findings of diminished responsibility has been matched by a fall in unfitness to plead and insanity findings (Walker, 1968). A plea of diminished capacity is different from a plea of insanity in that "reason of insanity" is a full defense while "diminished capacity" is merely a plea to a lesser crime.[6]
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.[7]
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.[8]
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).[citation needed] Defendants found not guilty by reason of insanity are generally placed in a mental institution.[citation needed] This is not the case in England and Wales, where under the Criminal Procedure (Insanity and Unfitness to Plead) Act of 1991 (amended by the Domestic Violence, Crime and Victims Act, 2004 to remove the option of a guardianship order), the court can mandate a hospital order, a restriction order (where release from hospital requires the permission of the Home Secretary), a "supervision and treatment" order, or an absolute discharge. [9][10] 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[11]. 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.[12]
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"[citation needed].
Competency largely deals with the defendant's present condition, while criminal responsibility addresses the condition at the time the crime was committed[citation needed].
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.
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.[13] 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.[14]
The concept of defense by insanity has existed since ancient Greece and Rome.[citation needed] 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.[15] 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, whom he mistook for British Prime Minister Robert Peel. The rules define the defense as "at the time of commiting the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or as not to know that what he was doing was wrong."[16] The key is that the defendant could not appreciate the nature of his actions during the commission of the crime.[citation needed]
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.[17] 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.[18]
The insanity plea is used in the U.S Criminal Justice System in less than 1% of all criminal cases.[19] Little is known 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.[19]
Some U.S. states have begun to ban the use of the insanity defense, and in 1994 the Supreme Court denied a petition of certiorari seeking review of a Montana Supreme Court case that upheld Montana's abolition of the defense.[20] Idaho, Kansas, and Utah have also banned the defense. In 2001, the Nevada Supreme Court found that their state's abolition of the defense was unconstitutional as a violation of Federal due process. In 2006, the Supreme Court decided Clark v. Arizona upheld Arizona's limitations on the insanity defense. In that same ruling, the Court noted "“We have never held that the Constitution mandates an insanity defense, nor have we held that the Constitution does not so require.”
The insanity defense is also complicated because of the underlying differences in philosophy between psychologists and legal professionals.[21] In the United States, a psychologist (or other mental health professional) is often consulted as an expert witness in insanity cases, but the ultimate legal judgment of the defendant's sanity is determined by a jury, not by a psychologist. In other words, psychologists provide testimony and professional opinion but are not ultimately responsible for answering legal questions. [21]
In the United States, variances in the insanity defense between states, and in the federal court system, are attributable to differences with respect to three key issues: (1) Whether to provide the insanity defense, (2) how to define "insanity," and (3) the burden of proof.
A criminal defendant may plead insanity in federal court, and in the state courts of every state except for Idaho, Kansas, Montana, and Utah.[22]
Each state and the federal court system currently uses one of the following "tests" to define insanity for purposes of the insanity defense:
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 killed 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[citation needed]. During his trial, nine witnesses testified to the fact that he was insane, and the jury acquitted him[citation needed], 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,[23][24] 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[citation needed]. 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[citation needed].
[edit] 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'Naughten Rule[citation needed]. However, the Durham standard drew much criticism because of its expansive definition of legal insanity.
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.
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.
In a majority of states, the burden is placed on the defendant, who must prove insanity by a preponderance of the evidence.
In a minority of states, the burden is placed on the prosecution, who must prove sanity beyond a reasonable doubt.
In federal court, and in Arizona, the burden is placed on the defendant, who must prove insanity by clear and convincing evidence.[citation needed]
The notion of temporary insanity argues that a defendant was insane, but is now sane. 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[citation needed].
The Scottish Law Commission, in its Discussion Paper No 122 on Insanity and Diminished Responsibility (2003), [1] 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)
Sweden is unusual in that it has no provisions for insanity defense (the insanity defense was abolished in Sweden in 1965). Instead, courts can sentence mentally ill defendants to involuntary commitment.[25]
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.[2] Of those cases that were successful, 90% of the defendants had been previously diagnosed with mental illness.[2]
- ^ Legal Information Institute. "The insanity defense and diminished capacity". Legal Information Institute: Federal Law. Cornell University Law School. http://www.law.cornell.edu/background/insane/insanity.html. Retrieved 19 December 2011.
- ^ a b c Schmalleger, Frank (2001). Criminal Justice: A Brief Introduction. Prentice Hall. ISBN 0-13-088729-3.
- ^ http://www.legislation.gov.uk/ukpga/1991/25/section/3
- ^ RD Mackay, BJ Mitchell, L Howe (2006) 'Yet more facts about the insanity defence' Criminal Law Review 399-411
- ^ Shapiro, David L. (1991). Forensic Psychological Assessment: An Integrative Approach. Needham Heights, MA: Simon & Schuster. pp. 69. ISBN 0-205-12521-2.
- ^ Legal Information Institute. "Diminished capacity, as opposed to not guilty by reason of insanity". Legal Information Institute: Federal Law. Cornell University Law School. http://www.law.cornell.edu/background/insane/capacity.html. Retrieved 19 December 2011.
- ^ Nwokike, Jerome (2005). "Federal Insanity Acquittees". Journal of the American Academy of Psychiatry and the Law 33 (1): 126. http://www.jaapl.org/cgi/content/full/33/1/126?maxtoshow=&HITS=10&hits=10&RESULTFORMAT=&searchid=1&FIRSTINDEX=0&minscore=5000&resourcetype=HWCIT. Retrieved 2007-10-19.
- ^ Irving B. Weiner (2003). Handbook of Psychology. Wiley. pp. 363. ISBN 978-0-471-17669-5. http://books.google.com/?id=jk8-b9AwmJgC&pg=PA363&lpg=PA363&dq=frendak+v+united+states. Retrieved 2008-01-01.
- ^ legislation.gov.uk (27 June 1991). "Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, Chapter 25". UK National Archives. http://www.legislation.gov.uk/ukpga/1991/25/introduction.
- ^ Crown Prosecution Service (2011). "Procedure". Mentally Disordered Offenders. http://www.cps.gov.uk/legal/l_to_o/mentally_disordered_offenders/.
- ^ Rodriguez, J., LeWinn, L., & Perlin, M. (1983) The insanity defense under siege: Legislative assaults and legal rejoinders. Rutgers Law Journal 14:397-430
- ^ Nwokike, Jerome (2005). "Federal Insanity Acquittees - Person Found Not Guilty by Reason of Insanity May Not Attack His Successful Insanity Defense in Habeas Petition". Journal of the American Academy of Psychiatry and the Law 33 (1): 126. http://www.jaapl.org/cgi/content/full/33/1/126?maxtoshow=&HITS=10&hits=10&RESULTFORMAT=&searchid=1&FIRSTINDEX=0&minscore=5000&resourcetype=HWCIT. Retrieved 2007-10-11.
- ^ Bonnie, Richard J.; Coughlin, Anne M. (1997). Criminal Law. The Foundation Press. pp. 537. ISBN 1-56662-448-7.
- ^ "Guilty But Mentally Ill"
- ^ Albert Christophe (1912). The Romantic Story of the Puritan Fathers: And Their Founding of NewBoston. http://books.google.com/?id=648_AAAAMAAJ&pg=PA131&lpg=PA131&dq=dorothy+talbye. Retrieved 2007-11-14.
- ^ United Kingdom House of Lords Decisions. "DANIEL M'NAGHTEN'S CASE. May 26, June 19, 1843.". British and Irish Legal Information Institute. http://www.bailii.org/uk/cases/UKHL/1843/J16.html. Retrieved 2012-06-01.
- ^ "Ford v. Wainwright 477 U.S. 399". Cornell Law School. http://supct.law.cornell.edu/supct/search/display.html?terms=Ford%20v.%20Wainwright&url=/supct/html/historics/USSC_CR_0477_0399_ZO.html. Retrieved 2007-10-04.
- ^ Champion, Dean J (2005). The American Dictionary of Criminal Justice: Key Terms and Major Court Cases. Scarecrow Press. ISBN 978-0-8108-5406-2. http://books.google.com/?id=w5_jF7YIPzYC&pg=PA456&lpg=PA456&dq=louie+l+wainwright. Retrieved 2007-10-06.
- ^ a b "The Advocacy Handbook - FAQ". http://consensusproject.org/advocacy/step2_main. Retrieved 2007-10-12. [dead link]
- ^ Court: Insanity Defense Not a Right Washington Post, March 29, 1994
- ^ a b Schlesinger, Louis B. (2009). "Forensic Psychology". In James, Stuart H. and Jon J. Nordby. Forensic science : an introduction to scientific and investigative techniques (3rd ed. ed.). Boca Raton, FL: CRC Press/Taylor & Francis Group. pp. 585–604. ISBN 978-1-4200-6493-3.
- ^ http://criminal.findlaw.com/crimes/more-criminal-topics/insanity-defense/the-insanity-defense-among-the-states.html
- ^ Carl Elliott, The rules of insanity: moral responsibility and the mentally ill offender, SUNY Press, 1996, ISBN 0-7914-2951-2, p.10
- ^ Michael T. Molan, Mike Molan, Duncan Bloy, Denis Lanser, Modern criminal law (5 ed), Routledge Cavendish, 2003, ISBN 1-85941-807-4, p.352
- ^ Sparr, Landy F. (June 2009). "Personality Disorders and Criminal Law: An International Perspective". Journal of the American Academy of Psychiatry and the Law Online. American Academy of Psychiatry and the Law. http://www.jaapl.org/content/37/2/168.full.
- Dalby, J. T. (2006). "The case of Daniel McNaughton: Let's get the story straight". American Journal of Forensic Psychiatry 27: 17–32. .
- Mackay, RD (1995) Mental Condition Defences in the Criminal Law, Oxford: Clarendon Press.
- Walker, N. (1968). Crime and Insanity in England:The Historical Perspective. vol.1, Edinburgh University Press. ISBN 0-85224-017-1. , pp15–16.
- - (1985). "The Insanity Defense before 1800". The Annals of the American Academy of Political and Social Science 477 (477): 25–30. DOI:10.1177/0002716285477001003. PMID 11616555. at p. 30
- Schmalleger, Frank (2001). Criminal Justice: A Brief Introduction. Prentice Hall. ISBN 0-13-396731-X.
- Boland, F. (1996). "Insanity, the Irish Constitution and the European Convention on Human Rights". 47 Northern Ireland Legal Quarterly 260.
- Brown, M. (2007). "The John Hinckley Trial & Its Effect on the Insanity Defense".
- Bucknill, J. C. (1881). "The Late Lord Chief Justice of England on Lunacy". Brain 4: 1–26. DOI:10.1093/brain/4.1.1.
- Butler Committee. (1975). The Butler Committee on Mentally Abnormal Offenders, London: HMSO, Cmnd 6244
- Ellis, J. W. (1986). "The Consequences of the Insanity Defense: Proposals to reform post-acquittal commitment laws". 35 Catholic University Law Review 961.
- Gostin, L. (1982). "Human Rights, Judicial Review and the Mentally Disordered Offender". (1982) Crim. LR 779.
- The Law Reform Commission of Western Australia. The Criminal Process and Persons Suffering from Mental Disorder, Project No. 69, August 1991. [2]
