We are all familiar with “the insanity defense,” it’s a well-known part of American culture.  But apart from practicing criminal defense attorneys, very few people actually understand the application of the rule and who can claim its protections.  The reality is that the insanity defense is woefully inadequate as it’s currently applied in American courts.

The majority of state jurisdictions mirror the federal mental disease/defect rule, which reads that a defendant cannot be held criminally liable for his actions when:

At the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.

Since this is an affirmative defense, it requires the defendant to prove that he was suffering from the mental disease or defect at the time of the actions which led to the criminal case by clear and convincing evidence.  This standard is more exacting than a “preponderance of the evidence” but not as stringent as “beyond a reasonable doubt.”  

But who, exactly, does this defense cover?  In essence, it requires a defendant to show that he or she was experiencing a real psychotic break with reality at the time of the commission of the offense and were incapable of understanding the situation or their behavior.  There is no question that these individuals are rightly covered by the insanity defense and that they lack the appropriate mental faculties required to form the intention to actually commit a crime.

The problem with the insanity defense is not that it covers people who should not be shielded by it.  The failing is that the scope is so specific that it fails to cover a significant population of people charged with crimes which are solely a result of their mental illness.  Prior to 1982, the rule covered a much larger portion of the mentally ill, but Congress specifically tightened and restricted its scope to exclude categories of mentally ill persons who had fallen out of favor.  This was a direct result of John Hinkley’s attempt to assassinate President Ronald Reagan.  When Hinkley shot Reagan, it sparked a national debate on using mental illness as an affirmative defense. Congress overreacted and amended the law, and now all across America people with legitimate mental illness who desperately need treatment rather than incarceration are finding themselves being criminally prosecuted and jailed.

The law currently fails to take into account that a significant number of people who, despite having some knowledge about the character of their actions, are still virtually unable to stop themselves.  This is known as a “volitional” defense.  A person can still feel compelled to act in a certain way, and feel powerless to change their behavior, while knowing the action is wrong or illegal.  These people, while seriously mentally ill, cannot assert the insanity defense.  

It is simply cruel that we, as a society, see fit to imprison people who experience auditory or visual hallucinations, who hears voices or see visions, and feels constrained to follow what they perceive as instructions whether from God, the devil, a ghost or spirit, their conscience, or any number of other sources.  If a person, in their own mind, loses the ability to control their own actions and is forced by some external factor to behave a certain way, they need intense psychiatric or mental health treatment, and incarceration is likely to do nothing more than exacerbate their problems which can only lead to more negative societal consequences.

The most common oppositional argument that I hear is that expanding the definition will lead to people abusing the system and getting away with crimes by claiming mental illness.  Here is why I don’t believe that argument is valid.  In order to avail oneself of the insanity defense, regardless of its scope, one has to establish that they were suffering from a severe mental disease or defect at the time of the commission of the crime.  That’s not an easy thing to demonstrate whether one is claiming a psychotic break or that one was acting directly on instructions from the devil.  The same difficulties with a jury apply.  If a defendant who has no documented history of mental illness or treatment tries to argue mental disease, a jury is unlikely to accept their claim without a significant amount of proof to back it up.  While it is certainly true that it’s possible that some defendants may convince a jury that they were mentally ill when they actually were perfectly sane, I see no difference in the possibility for abuse from its current iteration.  If a person is going to attempt to claim they were mentally ill, he or she is going to do so regardless of the scope of the defense.

In New York City, we have seen a massive uptick in recent years of people being arrested again and again for crimes which are clearly a result of mental illness.  Frequently, real danger is involved.  News articles of people getting pushed in front subway cars, or slashings of strangers in broad daylight appear on a weekly basis.  We should be increasing the methods for getting these people the treatment that they need, rather than arresting and releasing them pending their trial with no therapy or counseling, only to resolve their cases with incarceration.

While any lasting solution to deal with mental illness lies far outside the bounds of the criminal justice system, it’s long past time to make the appropriate changes to the insanity defense to at least ensure that society views these situations for what they are, people who need treatment rather than people who need jail.

By: Paul Townsend