The Insanity Defense

"History is the sum total of things that could have been avoided"
 Konrad Adenauer (1876-1976), Former Chancellor West Germany .

John Hinkley Jr. (AP)

The acquittal of John Hinckley in 1982 set off a groundswell of criticism against the insanity plea. It was thought that lawyers had manipulated the courts and abused constitutional protections in order to set a guilty man "free." Many people, lawyers, legislators and newspaper editors, called for the abolition of the insanity defense. Over the next few years, thirty-nine states made dozens of changes in their laws regarding insanity pleas. Utah and Idaho completely abolished the defense at criminal trials. There was a strong perception that the insanity defense was a "loophole" in the law that let murderers escape justice. Congress passed major legislation which made sweeping changes in the way the insanity plea is used in American courts.

David Berkowitz (AP)

But it's not only defendants and attorneys who manipulate the insanity defense. Journalists and politicians also abuse the NGRI plea for their own reasons. Politicians use it as a vehicle to capture the public's attention and journalists report on it because they are aware there is a great deal of public interest in the subject. But rarely do they explore the issue with the kind of attention and accuracy it deserves. As we have seen, statistics confirm that the plea is vastly exaggerated as a "loophole" and rarely does it get anyone off a criminal charge. But the common understanding of the plea is exactly the opposite. Samuel Walker writes: "This misunderstanding explains the fact that nearly half thought it should be abolished and an incredible 94.7% thought it should be reformed" (Walker, 1994, p. 151). Of course, any criminal defendant can raise the issue of insanity, which is his or her right to do. Actually succeeding in that defense is another issue entirely. Even Kip Kinkel, 17, who shot 29 people in an Oregon school rampage in 1998, was unable to substantiate an insanity defense. So were David Berkowitz, Ted Bundy, Sirhan Sirhan, Henry Lee Lucas, Charles Manson and John Wayne Gacy.

But since the insanity defense is utilized almost exclusively in murder cases (it is extremely rare in any other type of offense), the publicity it receives is far out of proportion to its use. It has become part of the promotional apparatus of high profile criminal cases in modern times. The trials of Jeffrey Dahmer, Hinckley, David Berkowitz (The Son of Sam Killer) and the Lorena Bobbit mutilation case, are simply not typical of most criminal trials held in America any more than O.J. Simpson was a typical murder defendant. It is simply incorrect to assume that what happened in the O.J. Simpson trial happens in murder trials across the country. And yet, it is not difficult to find a press story or a television talk show that laments the O. J. trial as symbolic of all of that is wrong with criminal justice in America. Nothing could be further from the truth, since the Simpson trial is about as far as one can get from the ordinary workings of our criminal justice system.

Legal scholars, judges, attorneys and clinicians have tried for hundreds of years to come to some sort of mutually acceptable understanding of what criteria should be used to gauge a person's culpable mental state. It hasn't been easy. The complex turnings of the human mind are not so easily deciphered according to a prepared script. Even if the insanity defense were eliminated tomorrow, it would not eradicate the issues under consideration. Defense attorneys would still have to address culpable mental state and so would prosecutors. Mens rea assessment is open to either side.

Jeffrey Dahmer (AP)

Consider the Jeffrey Dahmer case. Dahmer was arrested in Milwaukee in 1991 after he had killed at least 13 victims. His apartment contained the remains of many young men who he had brutally murdered and dissected. He poured acid on his victims, cut them into pieces and preserved their heads and genitals. He treated, preserved and decorated the skulls of his victims. His crimes are a litany of perversion and torture that is rare even for sexually motivated serial killers. In court, his attorneys attempted to plead Dahmer not guilty by reason of insanity. But prosecutors were able to prove that Dahmer knew full well that killing was against the law and what he was doing was wrong. The insanity plea was not accepted in his case. If someone like Dahmer could not be categorized as legally insane, then it stands up to reason that the criteria for insanity must surely be a difficult standard to meet.

This is the reality of the insanity defense in America: difficult to plead, seldom used and almost never successful. But in that small number of cases where it is successful, it is sometimes manipulated or abused in a way that often grabs headlines and captures the imagination of the public. Ultimately, only a jury can decide the issue of insanity, which in itself may be the most controversial aspect about the insanity defense. In other words, people who have no training in the field, rarely come into contact with the mentally ill and have a minimal understanding of the issues involved, make legal, long-lasting judgments that are frequently based on shifting criteria. Or as U.S. journalist Bugs Baer (1886-1969) once wrote: "It's impossible to tell where the law stops and justice begins!"