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.

 

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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.

 

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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.

 

Use of the Insanity Plea

 

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

 

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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.

 

A Case History of Anorexia Nervosa and the Use of the Insanity Defense

 

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.

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��������� 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.