Journal of Clinical Psychology, (1993) 49,
435-440
UNDERSTANDING THE USE OF THE INSANITY DEFENSE
GEORGE L. BLAU, HUGH McGINLEY AND RICHARD
PASEWARK
University of Wyoming
Psychologists
often are called upon to give their opinion about a legal concept, the insanity
plea.� Criminal cases that involve the
insanity plea consistently receive the attention of the media and of
legislators who contemplate restricting the use of the defense, yet there is
little nationwide information on the use and possible abuse of the insanity
defense.� This paper reviews what little
is known and suggests that in order to make psychologically and socially
responsible decisions, more information is needed on the use and success of the
plea.
The
insanity defense commonly is believed to be used too frequently in the courts
and is regarded by some individuals as a way in which a guilty person can
escape punishment.� Lawyers and
psychologists have both a vested interest in understanding the use of the
insanity defense and a concern about responsible legislation related to the
defense.� Clinical psychologists not
only provide testimony about a defendant's insanity, but also may be involved
in the data collection process and may be consulted about the use of the plea
within their state or nationally.
The
legal system functions to promote an enduring society; it is the stability keel
of the ship of society.� Laws reflect
the general values of society, but all too often they are subject to the
capricious whims of what may be called "public opinion." Against this
background, psychologists are faced with testifying or providing their
professional opinion based with regard to a concept that, while it may look
familiar, is a legal construct.
From
M'Naghthen's attempt to shoot the Prime Minister of England to Hinkley's
attempt to shoot the President of the United States, the insanity defense is an
example of a legal principle that has been misunderstood and misinterpreted by
society and perhaps by the legal and mental health professions.
Traditional
legal analysis states that a crime, in order to be a crime, must have three
elements.� A guilty mind, the mens rea;
a proscribed act, the actus reus; and the prescribed punishment.� Without each of these three elements there
can be no crime in a traditional analysis, and, accordingly, an individual
cannot be found guilty of a nonexistent crime.�
For example, in Wyoming several years ago, the then attorney general was
accused of malfeasance in office, an old common-law crime from Wyoming's
territorial days. �The prosecution
dismissed the charges because even though the "crime" existed, there
was no punishment associated with the crime.
Similarly,
in classic law school tradition, if one smuggles French lace from France
believing it to be a crime and, in fact, it is not, there is no crime.� There is mens rea, guilty mind, but no
proscribed act.� Correspondingly, if one
takes French lace from France believing it to be allowed and, in fact, it is
not allowed, there exists a proscribed act, but no mens rea and, thus, no
crime.� While there are exceptions to
this analysis, such as crimes for which no mens rea is required, this basic
analysis forms the foundation for any discussion of the insanity defense.
Correspondence
and reprint requests should be addressed to George L. Blau, Ph.D., J. D., Department of Psychology, Box
3415~-University Station, Laramie, WY 82071.
435
The question is, no
matter the exact wording of the defense, did the alleged criminal have a
requisite guilty mind?� The traditional
analysis follows from the idea that a child or anyone without the capacity to
form the requisite guilty mind cannot be guilty of the proscribed act.� Thus, similarly, the insane are believed to
be unable to form the guilty mind and, according to class law analysis, there
is no crime because of the defense; the insane person is not guilty by reason
of insanity.
While any spectacular
crime garners the attention of the media and subsequent public attention, the
use of the insanity defense in any crime attracts additional attention.� This occurs especially when the defendant
appears not to have any other defense and appears to be using the insanity
defense to avoid culpability.� This
increased public attention, coupled with the Barnum effect (where an unusual
event stands out and is remembered), potentially leads to the idea that the
insanity defense is used too often and is too often successful.
Understandably,
questions arise about the actual use of the insanity defense: "How is the
insanity defense used?" "Is it misused?" and "Is it
successful?" From a legal perspective, the interest in the defense is in
its practical use.� From a psychological
perspective, the interest is that, at least in part, the defense relies on the
psychological functioning of an accused individual.� Finally, from a societal perspective, the interest seems to lie
in the restriction of the defense or in creating a non-defense, such as guilty
but mentally ill, in which there is a crime, but the guilty individual is
treated differently as a result of a mental condition.
THE
RATIONALE OF THE PAPER
In any scientific
endeavor in which one wishes to organize and make sense of the subject, one
starts with data.� Whereas it would be
expected that information on the use of the insanity defense would be widely
available, the converse is true.
To understand why there
is this lack of information, it is helpful to divide the legal process into
three arbitrary, but commonly useful stages.�
First, a number of preliminary steps take place before formal pleas are
entered, such as pre-indictment notification and arrest.� Those cases that are resolved at an early
stage are not recorded as employing the insanity defense and do not reflect the
use of the insanity defense.
A second stage is
comprised of those cases that go beyond preliminary steps, but are resolved
before trial.� In these cases, the
defense is formally entered into court records, and it would be expected that
these records would be available for study.
In the last stage,
ignoring appeals, the case is decided by a trial, and a determination can be
made as to whether the insanity defense was successful.� This third stage is the only stage at which
an empirical determination of the success of the insanity defense can be estimated.� While it would be grossly misleading to base
an understanding of the criminal justice ~system's use of the insanity defense
on only the cases that proceeded to verdict alone, even this stage limits an
understanding if information is not available both for the incidence of the
defense and the success of the defense at trial.
In an attempt to collect
such information, McGinley and Pasewark (1989) repeated their earlier attempt
to assemble nationwide data on the frequency with which the insanity plea is
entered and the number of insanity adjudications rendered.� In the study, forensic directors in each
state and the District Columbia were contacted by a mail survey that solicited
data relative to the frequency of insanity pleas and insanity verdicts in their
jurisdictions.� If the state forensic
director was not able to provide the information desired, she/he was asked to
indicate, if known, an alternate source for these data.� In each case in which another source was
provided (e.g., Court Administrator, Department of Corrections), this individual
or agency was contacted.� Of the 51
jurisdictions involved, 4 did not respond.
Insanity Defense������������������������������������ 437
NOT
GUILTY By REASON OF INSANITY (NGRI) DATA AVAILABLE
According
to McGinley and Pasewark, only 5 jurisdictions, in contrast to 10 in the prior
survey conducted by Pasewark and McGinley (1985), reported the number of
defendants who utilized the insanity defense.�
These were: Colorado-45; Minnesota-59; Michigan-1215; Maine-200; and
Wyoming-100.
Basically,
survey results from these five jurisdictions reinforce the belief that the
insanity plea continues to be relatively rare in criminal trials.� Additionally, data suggest that the
frequency with which the plea is entered varies markedly for unknown reasons
among jurisdictions.� Colorado had 45
insanity pleas with an incidence of I plea for each 4,968 arrests.� Minnesota had 59 insanity pleas with an
incidence of I plea for each 2,938 arrests.�
Michigan experienced 1,215 pleas resulting in I plea for each 476
arrests.� Maine with 42,739 arrests had
I plea per 214 arrests.� Wyoming with
20,407 arrests witnessed 100 insanity pleas and I plea per 204 arrests.
SUCCESS
OF INSANITY PLEA ONCE MADE
In
similar fashion, McGinley and Pasewark found a variation in the
"success" of the plea, as reported by the five jurisdictions able to
provide data upon both the frequency of the plea used and the number of
insanity verdicts.� In Colorado, 44~% of
defendants who made the plea were adjudicated insane, whereas the rates for
Michigan, Maine, Minnesota and Wyoming were 70~7o, 40~7o, 30~7o, and 20~7o, respectively
Essentially,
it appears, from the data provided by McGinley and Pasewark, that rather than
having available nationwide data or data generated in a consistent fashion by a
given state, policy makers must still remain largely dependent upon limited and
sporadic studies conducted by individual researchers or government agencies.
DISCUSSION
The
data that are reported in the survey and the data reported by authors of
studies of specific jurisdiction strongly suggest that the insanity plea is
seldom made in criminal trials and that, once the plea is made, few defendants
are actually adjudicated insane.� Yet,
the plea continues to capture the attention, and criticism, of those who write
in the legal and psychiatric fields, legislators, the general public, and the
mass media.� Great efforts and funding
are expended by legislative commissions in an attempt to revise statutes that
govern the defense.� Remarkably, these
endeavors seem to be based upon severely limited data.
Even
though there may be great interest in the phenomenon of the insanity plea, this
interest has not generated much of a demand for empirically based information,
or if, indeed, a demand for such information is present, it has led to the
collection of only limited information.
Data Required
The
question is "What kind of information is needed?" in order to make
informed decisions about the incidence and use of the defense.� The minimal data about the insanity and
alternate pleas that should be readily available are: (1) the number of persons
who originally enter the plea; (2) the number of persons who maintain the plea
through trial; (3) the reasons for dropping the plea; (4) the number of persons
who are adjudicated in accord with the plea; (5) the category of crime for
which the defendant is charged who enters the plea; (6) the category of crime
for which the defendant who maintains the plea is acquitted or found guilty;
and (7) the physical disposition of the successful defendant (release or
commitment for ~NGRI; fine, probation, or sentence for Guilty But Mentally III
~(GBMI)).� It appears that with the
exception of item 3, these data are either already collected or could be collected
by including them in the Uniform Crime Reporting Program.
As evidenced by the
attempts to collect nation-wide data, it appears that the routine collection of
insanity defense related data varies greatly among jurisdictions.� The initial problem faced in the collection
of these data is identifying defendants who have entered the insanity
plea.� Thus, in states that have a
single site or agency responsible for performing psychiatric evaluations on the
issue of insanity, such as Hawaii and Wyoming, basic data are relatively easy
to collect.� In states such as New York
and Washington, where there appears to be no single entity concerned with
issues related to insanity, the problem of collecting basic insanity data is
difficult if not insurmountable.� In the
extreme case, data collection efforts could require an examination of the
summary records of individual courts and, perhaps, of each criminal court
action.
Theoretically at least,
a well-funded team of researchers could obtain most of these minimal data.� More realistically, as mentioned previously,
insanity defense related data could be included in the Uniform Crime Reporting
Program.� However, in the absence of
this ideal situation, state mental health agencies could provide better
information than currently is available if they were required to report
routinely to Forensic Directors summary data about insanity plea ~acquittees
who have been committed to their care.�
In comparison to a complete information bank about the use of the
insanity plea, these data would be extremely limited, but would be superior to
what appears to be available presently.
To achieve an
understanding of the use of the insanity plea, there needs to be information
about defendants who initially enter the plea, but then drop it or for whom
charges are dismissed.� That is, to
understand the "success" of the plea it is important to know both the
incidence of NGRI adjudications and incidences in which the initial plea of
~NGRI altered the litigation process.�
For example, Randolph and Pasewark (1983) conducted archival research in
which they studied records on 68 defendants who had entered the insanity plea
in Wyoming during the years 1967 and 1968.�
Of these 68 defendants, 7 retained the insanity plea, 34 changed to a
guilty plea, 3 changed to a plea of not guilty, I pleaded nolo contendere (no
contest to the charges), 16 had the charges against them dismissed, 4 of the
cases were nolle prosequi (dismissed by the prosecutor), 2 cases were not
known, and I jumped bail with whereabouts unknown.� Of the 7 defendants who kept the insanity plea through trial, 2
were adjudicated NGRI.
The "success"
of the NGRI could be viewed as 29%, that is, of the 7 defendants who actually
carried their insanity plea through trial, 2 were "successful" in
that the outcome of the trial supported the defense.� However, how many of the other defendants may have benefited in
some way from the initial entry of the insanity plea?� More specifically, what is the benefit to the defendant of using
the insanity plea to achieve an agreed-upon plea that reflects something less
than the original charge?
Although investigators
mention the use of the insanity plea in plea bargaining or negotiated
dispositions, empirical data are very difficult to obtain.� In order to appreciate the use of the
insanity defense, it is necessary to understand how it is used in the criminal
justice system.
Defense lawyers are well
aware of the benefit to the defendant of any defense, and the insanity defense
is no exception.� Although plea
bargaining data never will be verified experimentally because of their
non-public nature, they may be estimated through direct questioning of
attorneys.
McGinley and Blau (1986)
conducted a statewide survey of practicing attorneys in Wyoming.� Sixty-six defense attorneys and 46
prosecuting attorneys responded that they had been involved in at least one
criminal case that involved the insanity plea during the preceding 5
years.� Seventy-eight percent of the
defense attorneys and 64% of the
Insanity Defense�������������������� �������������������439
prosecutors
reported that the insanity defense was used successfully to the advantage of
the defendant in cases in which negotiated disposition resolved the matter.
The
question arises, why would the insanity plea be useful as a plea bargaining
tool?
Based
on anecdotal evidence of how criminal defense lawyers use the insanity defense,
it was hypothesized that it was being used as a bargaining chip that could lead
to a disposition more favorable to the criminal.� Because less than 10% of criminal cases go to trial, most cases
result in some alternative negotiated disposition such that the insanity
defense is not used explicitly or is dismissed during processing during the
criminal justice process.
For
example, in one recent case, the daughter of a wealthy Midwestern executive was
charged with five counts of felony shoplifting in a small western resort
area.� She had a history of anorexia
nervosa, and the facts that surrounded her crimes were consistent with an
individual who was crying for help as opposed to an individual who was taking
items for profit or some other criminal motive.� For example, she took a bracelet from the head of housekeeping
and then, in a girl's dorm provided for employee housing, blatantly left the
notable and distinctive bracelet out on her dresser which was visible from the
hallway while the door was kept open.
Although
there were other examples of the girl's behavior that justified employing the
insanity defense, the prosecutor in this small western town was notorious for
always going to trial with the crime as charged.� The result in this case was a cognitive stalemate of sorts, in
which the prosecutor insisted on going to trial on several felony counts
against the young lady, and the defense adamantly and rightfully evoked the
insanity defense.
The result of this illustrative example is one that is repeated over and over.� This 18-year-old girl, who may have been incapable of forming the mens rea for the felony charges, ended up pleading to a misdemeanor.� With the felony charges dropped, she was required to enter hospitalization for her condition (anorexia nervosa), return the property taken, and personally pay back the full amount necessary for restitution.� What is germane to this discussion is the fact that the NGRI plea never appealed as a statistic even though it materially influenced the outcome of the case.
CONCLUSION
Understanding
the insanity plea is important to psychologists who are called upon frequently
to testify about a defendant's mental status under the label of insanity.� As does the carpenter who understands the
use of a level, the sage psychologist understands not only the plea, but the
relative use and success of the plea.�
As McGinley and Blau (1986) have documented, the plea, although not
frequently used or successful at trial, may be used in negotiated dispositions
in order to achieve some benefit to the defendant.
The
insanity defense, as is any defense, is important to a society based on
rules.� As a result, it is critical to
study and gather additional information before modification by legislatures
that often base decisions on little or inadequate information.
When
questions about the disposition of defendants who initially enter the insanity
plea can be answered, then the use of the plea will be better understood, and
it is possible that a better understanding of the use of the plea will provide
legislators a basis for insanity plea related legislation that is not based
upon rumor and personal opinion.
REFERENCES
��������������� McG~INLEY, H. & BLAU, G. L. )
1986).� The success of the insanity plea: A survey of attorneys.� Paper presented at the meeting of the
American Psychology and Law Society, Tucson, AZ.
��������� McGINLEY, H., & PASEWARK, R. A.
(1989).� National survey of the
frequency and success of the insanity and alternate pleas.� Journal
of Psychiatry and Law, 15, 205~-221.
���������
��������� PASEWARK, R. A., & McGINLEY, H. (1985).� Insanity plea: National survey of frequency
and success.� Journal of Psychiatry and Law, 13, 101~-108.
��������������� RANDOLPH, R. L., & ~PASEWARK, R. A.
(1983).� Characteristics, dispositions,
and subsequent arrests of defendants pleading insanity in a rural state.� Journal
of Psychiatry and Law, 11, 345-360.