Insanity Defence

Not guilty by reason of insanity (NGRI)

Insanity Defence For criminal act to take place Must be an Actus Reus and Mens Rea

Not sufficient to be guilty of committing criminal act – Actus Reus

Must also be found to have the capacity to:

Understand the act was wrong To have the ability to choose behaviour other than the criminal act - Mens Rea

Insanity DefenceInsanity Defence

Not guilty by reason of insanity NGRI A special verdict to allow courts to consider ‘excusing’ criminal behaviour

In those found to be without Mens Rea

Plea not often used

And can often be unsuccessful Of those deemed to have mental disorders who commit crimes

Most are judged ‘sane’ and treated as ‘sane’ by courts

Insanity Defence 12th C Lord Bracton principle of mental deficiency Some people do not know what they are doing and act in a manner as to be not far removed from the brute

This wild beast/ brute standard insanity requirement of English courts until 1843

Modern standards based on McNaghten Rule 1843 McNaghten suffered from delusions of persecution by English PM – Peel

Attempted to kill him but shot his secretary by mistake

Judged NGRI incarcerated in Bedlam until his death

Queen Victoria challenged the decision but it was upheld and rules for legal definition of insanity put in place

Insanity Defence

‘To establish a defence on the grounds of insanity, it must be clearly proved that, at the time of committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as to not know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing wrong’ ( in Jones, 2000)

Wilful intent is an essential part of most offences

A person who is insane is not capable of forming such intent

Mental disease or defect does not alone constitute a legal insanity defence

The defendant has the burden of proving the defence of insanity by clear and convincing evidence

McNaghten Rule 1843 Rule problematic

Must be decided whether the person was suffering from a defect of reason due to a disease of the mind

Disease of mind legal term developed in common law

Presents 19th C view of mental disorder as a disease or defect

Medical model – some psychologists disagree with this concept

Does not necessarily equate with mental health professionals view of mental disorder

McNaghten Rule 1843 The law is not concerned with the aetiology of a disease of the mind

Or whether it is permanent or temporary

But it must have existed at the time of the offence

Physical malfunction of the brain can be classed as a disease

But not the effect of external factors

McNaghten Rule 1843 Must also be considered if the person knew the nature and quality of his act and if they did they know it was wrong?

‘Knew the nature and quality Were they aware of what they were doing and the consequences ( for self and others)

‘Did they know it was wrong’ Must not know that the act was against the law

Not acceptable for a person to know act was wrong but believe they had justification

Or it was morally acceptable

This is very restrictive and is unlikely to apply to most people with mental disorders/ personality disorders

Most people know that it is wrong to kill someone else

Rule concerned with the ability to reason

Not with emotion or volition Do not provide a defence for people who for example have uncontrollable impulses which result in the offence taking place

For psychopaths

What counts as insanity under this definition?

High profile cases in America highlighted early confusion

Successful plea 1859 – Dan Sickle – highly honoured congressman

Shot Philip Barton Key at point blank range in front of 12 witnesses

Acquitted on grounds that he could not be held responsible as he was driven insane by the knowledge that Key was having an affair with his wife

Unsuccessful plea 1881 Charles Guiteau shot President Garfield who died 3

months later from injuries sustained Guiteau suffered from delusions and paranoia – wanted

to be American Ambassor to France Found guilty of murder Judge suggested ‘An intelligent person must be aware

they cannot shoot a President down like a dog’

Rule too rigid?

Some considered it an all or none rule Only excusing most severely mentally ill 1886 Parsons v Albama decision could utilise defence if

By reason of duress of mental disease he had so far lost the power to choose between right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed

Became known as the ‘irresistible impulse test’ England as ‘the policemen at the elbow’ test what counts as an irresistible impulse ? How is an irresistible impulse measured ? How can we tell if another could resist an impulse?

Is it a legal loophole?

More lenient rule The Durham Standard 1950s the Durham v. United States case. The court ruled that an person was legally insane if he "would not have committed the criminal act but for the existence of a mental disease or defect."

Brought more flexibility to the insanity defence

By dropping the requirement that a defendant who knows the difference between right and wrong is therefore not legally insane

However, drew much criticism because of its expansive definition of legal insanity

Model Penal Code 1970 Substantial Capacity rule American Law Institute (ALI) Standard for legal insanity that was a compromise between the strict M'Naghten Rule and the lenient Durham ruling.

Defendant not responsible 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’

By the 1970s all federal circuit courts and many states had adopted the MPC guideline

The MPC standardThe MPC standard was popular until 1981 When John Hinckley was found NGRI under these guidelines for the attempted assassination of President Ronald Reagan

Shot Reagan and several of his aids Viewers saw incident live on TV He was attempting to impress Jodie Foster With whom he had an obsession Public outrage at Hinckley's acquittal Caused legislation that reverted back to the strict M'Naghten standard - Insanity Defense Reform Act 1984

Some states attempted to abolish the insanity defence altogether

When used

Not commonly used

Not just used in serious crime National Report 1982 50% who used plea indicted for violent crimes

15% for murder Other charges more minor – robbery property damage etc

Often unsuccessfully used Often unsuccessful Eg Kip Kinkel -17 – shot 29 people in Oregan school rampage 1998

David Berkowitz, Ted Bundy, Charles Manson, John Wayne Gacy

Study funded by National Institute Mental health 1991

Used in less than 1% cases Only 26% successful Myths and Realities A report of the National Committee on the Insanity Defense 1982

Only 52 of 32,000 adult defendants in New Jersey entered Insanity Plea

Only 15 successful

Often unsuccessfully used Kirschner & Galperin, 2001 In 10 year period only offered by 16 out of every 10,000 defendants

Successful more than 75% of time

England 49 successful verdicts of insanity up to 1988 ( Mackay, 1990)

Verdict occurred in primarily unprovoked violence against another

More schizophrenics use plea than others who are mentally disordered ( Maquire, Morgan & Reiner, 1997)

51% of sample

Why NGRI seldom used More likely to be successful if prior mental illness proven

80% of successful pleas in America previously found incompetent to stand trial (Boenhart, 1989)

Issues of welfarism v legalism - Uncertainty in which cases it should be allowed

Issues relating to transitory nature of mental disorder

Why NGRI seldom used Does being considered insane legitimise incarceration for longer than the sane who commit similar offence?

Defendants persuade to avoid longer detainment by pleading guilty

Defence must weigh up advantages of claiming insanity or not

Cannot go back to insanity plea Once insane ever sane again?

Issues with expert opinion In making a special verdict the jury must hear evidence from at least two doctors

One of whom must be approved under section 12 of the Mental Health Act 1983

Expert witnesses role to determine mental state – not to determine guilt

Can only give testimony about probable mental state at time – nature and severity

Issues with expert opinion Subjective assessment – particularly if based on theory

As opposed to empirical evidence

Although these diagnoses can be valuable Are they based on generalisations as opposed to in- depth understanding about particular case

Are they expected to predict things – future likelihood of offending – which are impossible to predict with 100% accuracy

Expert opinion As with other medical problems a mental disorder can have different effects on different people

Even 2 psychiatrists can disagree on finer points relating to a mental disorder

Diagnoses are suggested to be accurate 80% of time – on par with physical illnesses

However in end court decides guilt – issues with credibility in juries eyes about expert testimony

Issues with jury thinking NGRI legal loophole

NGRI and sentencing Of 49 verdicts ( Mackay 1990) 2 released One appealed against verdict Majority of rest went to special hospitals 10 discharged within 9 months

Concerns about disposal one objection to use of defence

Theoretically humanitarian view held about mentally disordered who offend

Should receive treatment as opposed to custodial sentence

NGRI and sentencing The Trial of Lunatics act (1883) amended by the Criminal Procedure (Insanity) Act 1964

If person deemed NGRI at time of offence Had to be admitted to hospital with restrictions on discharge without limit of time

1991 major Insanity and Unfitness to Plea Act Insanity plea intended to protect vulnerable people

Increased court disposal options Admission order with or without restrictions on discharge -Guardianship Supervision and treatment orders - Absolute discharge

Sentence for murder remains mandatory – hospital order with indefinite restriction

Do those hospitalised evade justice- Or once insane always insane? Appears to be growing desire to impose penal control over mentally disordered offenders Crime Sentences Bill 1996

Power of courts to combine prison sentence with immediate directive of hospitalisation

1997 Act mandatory life sentence for second serious offence

Disallows courts from imposing therapeutic disposal

Patients held in secure hospital for longer Than those sent to prison for similar crimes Although it is suggested patient should be discharged if continuing disorder not established

Use of this provision remains minimal

Insanity Defence Still source of continuous disagreement Public perception used as a legal loophole

Despite those receiving verdict more likely to be incarcerated for longer

Alternative pleas used more frequently than insanity defence

Less damning?

Use of alternative verdicts America Guilty but mentally ill Allows guilty verdict with consideration given to mental illness

Sentenced to prison with meaningful medical care Still punished in same way as those without mental illness

APA do not endorse this plea Suggest arisen out of perception that juries Have difficulties with issues of factual guilt And defendants ability to judge the morality of own actions

Perception that defence is used to escape full guilt

Alternative pleas

Unfit to plea – disordered at point of trial Infanticide – an exceptional charge for women Diminished responsibility – a qualified defence to murder

Unfit to plea Intended to protect those whose mental state may cause unfair trial

Unfitness has to be determined by 2 doctors. Trial abandoned if found

Jury decides in absentis of defendant Liable to therapeutic intervention 1979-1989 0nly 229 recorded cases. 11 in 1989 50% primary diagnoses of schizophrenia 23% brain damage or mental handicap

Most sent to hospitals 30 sent for retrial – 11% found not guilty

Alternative pleasDiminished Responsibility

‘State of mind so different from that of ordinary beings that a reasonable man would term it abnormal’

Wide range disordered states including failure to resist impulse

Reliance on it by women who kill Partial recognition of ‘battered woman’ syndrome England and Wales Men use self defence more Women diminished responsibility more ( Raeder, 1992: Wells, 1994)

Men are bad and normal: Women are mad and abnormal ( Wilcznski, 1991)

Alternative pleas EnglandInfancide ( Infanticide Act 1938 For women who kill their child under 12 months

27 cases between 1982-9

Diminished responsibility – post natal effects still evident

Enables court to avoid mandatory life sentence

Issues what counts?

Should fathers be able to use this plea also?

References Ainsworth, P.B. (2000). Psychology and Crime: Myths and

RealityBartol, C.R. & Bartol, A.M. (1994) Psychology and Law (2nd Ed). Pacific Grove, Brooks Cole PublishingHare, R.D. (1991) Manual for the Hare Psychopathy Checklist – Revised. North Tonawanda, new York, Multi-Health Systems Inc. Quinsey, V.L. & Maquire, A. (1986). Maximum security

psychiatric patients: Actuarial and clinical predictions of dangerousness. Journal of Interpersonal Violence, 1 (2): 143-171Rice, M.E.(1997) Violent offender research and implications

for the criminal justice system. American Psychologist 52 (4): 414 - 23

Rutter, M (1985). Resilience in the face of adversity, protective

factors and resistance to psychiatric disorder. British Journal of Psychiatry, 147: 598 – 611