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Wednesday, January 18, 2012

Writing Q&A: Using the Insanity Defense in Your Story

Disclaimer: The information provided in this post is intended for writing purposes only and does not represent psychological or legal advice.


A reader/writer asked us, 

What is the insanity defense?

and we decided to go all out. For psychologist Carolyn Kaufman's psychological perspective on Psychological Disorders and the Insanity Defense, visit lawyer Leslie Budewitz's Law and Fiction blog. For Ms. Budewitz's legal take, keep reading!

The underlying premise is that a person cannot be held responsible for criminal behavior if mental illness prevented him from understanding that his actions were wrong. This inquiry focuses on the defendant’s mental status at the time of the crime.

The test has changed significantly since the defense was first recognized in 1843. Courts applied several standards from the 1950s to the early 1980s. The 1982 trial of John Hinckley, who shot President Reagan, highlighted the controversy and prompted legislative changes. In most cases, there is little doubt that the accused committed the crime; the real issue is insanity. In Hinckley’s case, the defense arose early, and psychiatric evaluations–which took four months–began shortly after his arrest. The standard applied at trial was whether Hinckley could  “appreciate the wrongfulness” of his actions, and the government had the burden of proving that Hinckley was sane. After three days of deliberations, the jury found him “not guilty by reason of insanity” on all counts.

After the trial, Congress and many states changed their laws to shift the burden of proof to the defendant, meaning that a person claiming the defense must prove its essential elements. In essence, the presumption of innocence is now paired with a presumption of sanity. Currently, in federal cases, the defendant must prove that he has a "severe" mental disease which made him "unable to appreciate the nature and quality or the wrongfulness of his acts." (I say he for simplicity’s sake, though I suspect most such criminal defendants are male–Squeaky Fromme and Lorena Bobbit aside.) The language of state standards varies somewhat, but is similar. Note that proof of mental illness alone is not enough.

Several states give jurors an additional verdict choice: “guilty but mentally ill.” A handful of states (Idaho, Kansas, Montana, and Utah) do not allow the defense at all, but allow the defendant to introduce evidence of mental conditions to show that he did not have the level of knowledge or intent (“mens rea”) for the crime charged. In other words, he tries to prove that he could not form the intent to purposefully or knowingly kill another. If he meets his burden, the state will be unable to prove all elements of the crime charged, and he will be acquitted by reason of mental illness–essentially the same result as under the insanity defense.

A defendant found not guilty but mentally ill may be confined to a mental institution if commitment standards are met, and released if he becomes no longer mentally ill. Hinckley is confined to St. Elizabeth’s Hospital in Washington, D.C. In 2003, a judge ruled he no longer presented “a serious danger” to himself or others, and approved unsupervised visits with his parents. If he establishes that he is no longer a threat to himself or others, he will be released.

In December 2011, Hinckley’s lawyers sought his release on lengthy unsupervised visits to his widowed elderly mother, arguing that he is no longer dangerous. Government lawyers opposed the petition, presenting evidence that when out on unsupervised free time, he did not go where he claimed but instead went to bookstores and looked at books on Ronald Reagan and presidential assassins.

A defendant found guilty but mentally ill will be sentenced and kept in government custody for the length of his sentence. Where he is held depends on that state’s procedures and facilities, but it’s typically a prison mental health unit. If he becomes no longer mentally ill while still serving his sentence, he will be transferred to an ordinary prison unit. Once his sentence is complete, he must be released although civil commitment is still possible.

The defense is not limited to murder cases. Lorena Bobbitt argued that she was temporarily insane when she severed her husband's penis with a kitchen knife, and a Virginia jury agreed; she was released after psychiatric hospitalization.

The insanity defense is still much in debate. The heart of the disagreement is the tension between treatment or protection, and punishment. Advocates say the defense allows mentally ill offenders to obtain needed treatment and keeps them out of the prison system, where they lack treatment and are often victimized. A humane society must recognize that some people cannot be held to the same standards of conduct as the rest us because of mental illness they can’t control. Others believe the defense allows the guilty to escape punishment for their crimes, and suspect defendants of faking mental illness to get an acquittal or avoid prison. Justice Department statistics say the defense is raised in only about 1 percent of cases, and succeeds in only 25 percent of those. A large percentage of acquittals result from plea agreements, where the prosecutor agrees that the defendant should be sent to treatment, not prison. Ideally, the evaluation process detects attempts to fake mental illness, which can trigger an enhanced sentence.

But the insanity defense was anathema to Ted Kaczynski, who insisted on representing himself in part because his court-appointed lawyers wanted to raise the defense, while he believed he was sane. By legal measures, he was right. His writings and his arguments to the court demonstrated that his paranoid schizophrenia–a diagnosis he rejected–did not prevent him from understanding that his actions were wrong.

The insanity defense looms large in Otto Preminger’s 1959 classic, Anatomy of a Murder, based on the novel by Robert Traver (the pen name of Michigan Supreme Court Justice John Voelker), starring Jimmy Stewart, Ben Gazzara, and George C. Scott. Just be aware that the law on insanity has changed, as has the admissibility of evidence of a woman’s dress, behavior, and reputation in a rape case.

For details of John Hinckley’s trial, see law professor Doug Linder’s Famous Trials website.

The insanity defense dates back to 1843–writers of historicals should start their research with an article on the evolution of the defense on Professor Linder’s website or the Supreme Court’s historical review in Clark v. Arizona (2006).

And here’s a state-by-state summary of laws on the insanity defense from Find Law.


Leslie Budewitz is the author of Books, Crooks and Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure (Quill Driver Books, 2011). She is a practicing lawyer and a mystery writer living in northwest Montana. Read an excerpt and more articles for writers, or send her a question, at www.LawandFiction.com , and visit her blog at www.LawandFiction.com/blog.


Leslie’s short fiction has appeared in Ellery Queen, Alfred Hitchcock, ThugLit, and elsewhere. Her cozy series, The Food Lovers’ Village Mysteries, will debut from Berkley Prime Crime in 2013.

4 comments:

Stina Lindenblatt said...

Thanks for the great post, Leslie. I've always been curious about this plea.

Leslie Budewitz said...

Glad to help, Stina -- thanks for reading. Any questions, fire away!

jennymilch said...

This is a fascinating post on a topic that I think is largely misunderstood by the public.

Leslie Budewitz said...

Jenny, I know you read Carolyn's post on my blog, too -- isn't it interesting to get the view from both sides?