Historical development and legal status of the insanity defense

Judicial Process: The Insanity Defense

Since 1724, there have been records of the insanity defense being used in trials. Before that time, there was no difference in the eyes of the court between criminal behavior and mental illness, so people who were mentally ill did not get any special treatment and did not have the option to avoid punishment (including execution) just because they were mentally defective or damaged in some way. In 1986, the Supreme Court upheld the idea that it was not legal to execute a person who was insane (Schmalleger, 2001). A competency evaluation is required for anyone who is to be executed. Some states, including Montana, Kansas, Utah, and Idaho, have completely banned the insanity defense, and the Supreme Court has upheld their right to do that. Arizona has limited provisions for the insanity defense, and those provisions were also upheld by the Court in recent years.

Generally, most people do not try to use the insanity defense because it is very hard to prove. The defense must show that the person is insane, and simply "acting crazy" is not going to be a sufficient defense. Each state has clear regulations as to what constitutes sufficient evidence for a person to be declared legally insane. If the person is not competent to stand trial and is actually deemed criminally insane, he or she may not even have any kind of trial regardless of the nature of the crime. Instead, the person may be placed into a mental facility and he or she can remain there indefinitely (Ellis, 1986). Sometimes, the goal of the mental facility will be to "make" the person competent to stand trial. This is usually done through medication, because proper medication for a previously unmedicated mental illness can make a lot of difference in how sane and rational a person is.

If a person can be medicated and made competent to stand trial, some prosecutors will still try the person (Walker, 1968). Other cases end up with the mentally ill (insane) person remaining in the mental facility for the rest of his or her life. At times, people can be helped through medication and therapy to the point that they can serve their time and be released back into society. For the severely criminally insane, though, this is not generally the case. Instead, they are often locked away in a mental health facility for the rest of their lives, or they are medicated and then tried for their crimes, after which they are incarcerated in prison for the length of their sentence - sometimes the rest of their lives (Gostin, 1982). While the insane cannot be executed, those who were insane and are now deemed sane do not have the same protection - and they are eligible for the death penalty in certain cases, if that was part of the deal when they were originally tried. For most people who were insane at the time their crime was committed, however, it is not possible for them to receive the death penalty even if they did something that would have warranted that type of punishment had they committed their crime while sane.

History of the Insanity Defense

The actual insanity defense can be traced back to the Ancient Romans and Greeks. Colonial America, however, was not as forgiving. Dorothy Talbye was hanged for killing her daughter in 1638 due to the lack of any distinction between mental illness and criminality (Gostin, 1982). English Common Law deemed a person insane if they basically had the capacity of a dumb animal. Most of the people who were insane were spared from a trial, which may have been why there were so few records of the issue. Eventually trial by jury became more common, and the jury would find the mentally ill person guilty of the crime (because he or she clearly did it) and then refer the case to the King. The idea was that the person should receive a Royal Pardon (Walker, 1968; Walker, 1985). Starting in 1500, it was possible for juries to acquit a person who was insane. In order to detain them, a separate civil procedure was required (Walker, 1985).

In 1800 the Criminal Lunatics Act was passed, and allowed Her Majesty to detain people who were insane at the time of their crimes (Schmalleger, 2001). Even if the people became sane later, they could still be detained indefinitely. It was up to Her Majesty as to whether she released them. Rules that were passed following that were similar to the rules that are used today in that the defendant had to have a mental defect, disease, or other problem that did not allow him to understand either what he was doing or why it was wrong. There is still much controversy over the insanity defense, but that is thought to be largely because the cases that use it are high-profile cases that are difficult to ignore and that are all over the media for weeks and sometimes months. It makes it appear that the insanity defense is being used quite frequently, when in fact that is far from the truth of the matter.

Rules of the States - Cases

Each state sets its own rules about what makes a person "insane," because when used in this way it is a legal defense and not a medical defense. Whether a state wants to consider lesser degrees of mental difficulty as part of a person's defense (by reducing that person's punishment, for example) is up to that state (Burns, 2011). Some states will do that, but it is at their discretion. Florida has nothing in its statutes to indicate that this would be an option, but there is also nothing that specifically prohibits it. Public outcry may affect how a mentally ill person is treated, but ultimately it is up to a judge (or jury) to determine guilt and hand down punishment for a crime that has been committed. While they sometimes listen to popular opinion - especially on high-profile cases where that is hard to avoid - they ultimately must come to their own conclusions regarding the guilt or innocence of a person who is on trial and the punishment that person should receive.

The insanity defense overall is not overused. Some people actually do meet the criteria for being criminally insane, and they can be a serious danger to society. Still, out of all the U.S. criminal cases, the insanity plea is used only 1% of the time - and 35% of those are cases involving murder (Burns, 2011). Out of those cases, 25% are successful. Seventy percent of the successful cases come about because of a deal being struck between the prosecution and the defense (Burns, 2011). There is also the issue of whether a person who is, technically, insane, can be treated and medicated so that he or she is deemed sane enough to stand trial. This can affect the outcome of the case and what will happen to the person who has been accused of the crime.

Some argue that the insanity defense should be abolished because of its lack of use, but there are cases where it is clearly warranted. There have been several notable cases where the insanity defense has been used, including the Andrea Yates trial and Italy's "Black Widow." Lorena Bobbitt was another case where an insanity or mental illness defense was used. She was eventually found not guilty due to the "irresistible impulse" defense (Burns, 2011). It is easy to see that there are many opinions on the insanity defense, and there are times when it perhaps should have worked for a severely mentally ill person but did not. In other cases, people "got away with" their crimes in the minds of the jurors because they were placed in a mental facility instead of in prison.

There is currently no movement to abolish the insanity defense, so it appears as though it will be around for some time to come. However, the argument that is wastes a lot of money and is not worth the time and hassle is one that is still being made. Since it is used so rarely, the cost of it may actually be less than society thinks - and when someone really is so mentally damaged that they do not know right from wrong it seems unfair to incarcerate them for life or execute them. There have been cases of mentally ill people and people with low IQs being sentenced to death, when they really did not understand the nature and severity of their crime. One man with a low IQ even asked if he could save the dessert from his last meal until after his execution. He clearly did not understand that he would not be coming back. Is it fair to punish and execute these people?

That question is one that is argued by those who have strong feelings about the death penalty and also by those who have strong feelings about the insanity defense and people who are mentally ill. There will be no easy answers for what should be done about the insanity defense, largely because it is different for every state and, therefore, hard to "pin down" in the area of specific changes. For states such as Florida, that have the burden of proof on the defense, it looks like nothing will be changed. That is good news, since putting the burden on the prosecution would be something that would open the door to many more people using the insanity plea in an attempt to get out of being punished for their crimes. If the state had to prove the person was sane, that could clog the courts and cost much more than the current way of handling the issue.

Conclusion

Overall, it does not appear that any changes should be made to the insanity defense. It is very difficult to prove, but it is still possible to prove for people who are technically insane. The people who are a danger to society and who are not safe to be out among others, but who really do not understand what they did and why it was wrong, can get mental health treatment. They are not "getting away with" their crime, because they have still lost their freedom and many of their rights. They are still being "incarcerated," only they will be in a mental health facility instead of a jail. As long as they are receiving proper treatment and being prevented from harming anyone else, the insanity defense has worked correctly. Given the low number of people who actually attempt the insanity defense - and the even lower numbers that succeed - it would not appear that the defense is being abused or misused in any way, and it should stand as it currently is.

Because politicians, lawmakers, religious organizations, and civil liberties organizations often have different agendas, though, it is possible that there will be changes to the insanity defense in the future. The fact that four states have abolished it and another state has severely restricted it (and that has all been upheld by the highest Court in the land) would indicate that people are becoming disenchanted with the insanity defense, regardless of how little it is used. The more people voice their frustration about something, the more chance there will be that it will be changed or adjusted. It seems, though, that there would need to be many more high-profile cases where the insanity defense is used before people as a whole become too concerned about whether it is being overused or abused in some way. When it appears that people are "getting away with" their crimes because they are going to mental facilities and not being place in prison, it may be time to make changes.