Ethical Issues with the Insanity Defense in Criminal Law

The Problem

There are numerous cases that exist currently and historically regarding the insanity defense. In some cases, those convicted of committing heinous crimes have been found not guilty by reason of insanity (NGRI). In some cases, the person who committed the crime was not aware or cognizant of his or her actions at the time the crime was committed. In other insanity cases, the perpetrator was not in his or her right mind and was riddled by some form of mental illness. Even with the fairly basic nature and reason for the plea, there are ethical issues that become apparent as it relates to the use of the defense.

The criminal justice system has been sworn to protect and serve the community. In many cases, it becomes a question of ethics only if there is a misuse of the insanity defense. This defense can cause one to question its application because victims of the perpetrator are left to resolve the death of their loved ones based on a NGRI verdict. In some situations, criminals are not competent to stand trial for their crime, which for families of the victims can mean closure is never ending, especially if there is not a death or life sentence involved.

However, criminals that commit crimes without knowledge of the act should be entitled to receive proper help and receive a fair trial rather than simply being thrown in a cell and left untreated (Cornell, 2015). This fundamental tension—between ensuring justice for victims and providing due process for mentally ill defendants—defines the ethical complexity of the insanity defense.

Factors Bearing on the Problem

The insanity defense is based on the assumption that at the time of the crime, the defendant was not sound of mind and therefore was incapable of appreciating the nature of the crime and differentiating right and wrong behavior. In other words, criminals committing crimes, though indirectly responsible, are not directly responsible for their crimes because of their mental illness. The purpose of the insanity defense is to provide those criminals suffering from mental illnesses the help needed for their illness. It would be unconstitutional to send a criminal with a mental illness to jail where treatment for mental illness is limited or not provided. Rather than sentencing one to jail, it would seem logical to send him or her to psychiatric confinement to receive the necessary help needed, which in essence will protect the citizens of the country and the criminal. Initially, this was the intended purpose of the insanity defense and why it was originated (Cornell, 2015).

The insanity defense implies that a criminal should not be found guilty on the basis of his or her mental illness because he or she could not distinguish between right and wrong. The insanity defense stems from Daniel M'Naughten, an Englishman who shot and killed the secretary of British Prime Minister in 1843. As a result, Daniel M'Naughten was sentenced to a mental institution for the rest of his life because he was declared mentally ill at the time he committed the crime (Legal Information Institute, 2010). The M'Naughten case was said to be the first legal test of the insanity defense and was called "The M'Naughten Rule," which became the standard rule adopted in the United States and United Kingdom (Cornell, 2010).

The criminal justice system is supposed to protect the lives of its citizens. However, that is not always the case. Although the laws of the land are put in place to protect, the judicial system does not always appear to adhere to that fact because some laws are put into place for those that are guilty yet have justified reasons for their crimes. Many cases and controversial issues are associated with crimes committed by those pleading not guilty by reason of insanity, although the final result may consist of psychiatric confinement. Criminal commitment is a legal procedure by which a person found not guilty of a crime by reason of insanity would be confined to a psychiatric hospital.

Interestingly, even those with mental illnesses have a right to be treated fairly despite the crimes they have committed. However, the insanity defense originated over a century ago. There are pros and cons resulting from the insanity defense, just as there are questions regarding the effectiveness of the insanity plea. Both positive and negative impacts can weigh heavily on those pleading the insanity defense. Therefore, it is vital to know when one should utilize the insanity defense.

Discussion

The relevant issue to be discussed is balancing the right of defendants to not be simply thrown in a cell even if they are grossly mentally ill and the right of victims to have lucid criminals pay for their crimes rather than using a legal defense that simply does not apply to an act or the criminal who commits the act based on a totality of the evidence. There is a rich amount of literature and material in the scholarly and legal sphere that informs on how to properly strike that balance. One treatise on the subject asserts that professionals need to use a three-stage process to show the proper part of the legal responsibility and mental health spectrum that people fall upon. The authors note that if the three-stage process is not started properly, this can directly undermine choices and assessments made as the process grinds on (Kalis & Meynen, 2014).

One way in which there is a clear delineation between truly insane acts and defendants that are "playing insane" is the use of what is known as forensic psychiatry. While forensic psychology is fairly well known, forensic psychiatry is lesser known but has become just as important, especially when talking about defendants that might or will be using the insanity defense (Meynen, 2012). While some may hold that over-analyzing mental dysfunctions can lead to wrong decisions, there are disorders where the question is extremely complex and it takes a psychiatrist to answer the question exhaustively and completely.

One such mental disorder is borderline personality disorder (BPD). It is held by one study that BPD is a "complex mental disorder that straddles the line between psychosis and neurosis" (Sisti & Caplan, 2012). That same study holds that even though BPD is a debilitating and massive disorder, the disorder alone does not "by itself provide sufficient grounds for voiding responsibility for criminal acts" (Sisti & Caplan, 2012). It would be very much like being drunk and killing someone in an accident. While the intent may not be there, there was enough lucidity and forethought involved that the acts cannot be legally excused due to the other factors involved.

Rather than a black and white system of review as it relates to extensive mental illnesses like BPD, many propose a sliding scale so as to identify when someone should be culpable and when they should not be culpable. However, this sort of "gray area" is sure to vex and anger those that are on the short end of the stick when it comes to criminal liability (justice for victims) and those not being held accountable for insane acts (criminal defendants). A black and white system would obviously be optimal but is simply not possible given the complexities involved and these complexities include the calculated actions of the defendants and their counsel (Sisti & Caplan, 2012).

However, the propensity of defendants to do whatever it takes to "get off" on a charge is not always the pattern that is seen. Whether it is because they really are insane or whether it is just because they want to rebel against everyone and everything, some people that probably should claim insanity simply do not do so, and the question becomes whether that person is even competent to stand trial. Such an instance happened a bit over a decade ago in New York. There was a criminal defendant that refused the advice of counsel to claim an insanity defense, and the question became whether that person was lucid enough to be able to aid in their own defense and whether they should stand trial due to competency issues. Of those surveyed, there was almost an even split between those that said he should immediately stand trial and those that said he should not stand trial in his current state. Interestingly enough, most mental health professionals were on board with him being competent while prosecutors tended to say the opposite. Regardless, it was found that, at least at the time, New York law was far from clear as to how such situations could or should be handled from a legally viable standpoint (Cheatham & Litwack, 2003).

While it may end up hurting people that truly can and should use the insanity defense, some have reacted to the ostensible overuse and misuse of the insanity defense by trying to restrict when it can be used. Indeed, many politicians and media members contemplate out loud whether restricting the use of the insanity plea is the right way to go so as to prevent it from being used when it truly does not apply. However, the data that would support or contradict this decision is simply not there in the opinion of many legal and political scholars. What should be avoided is listening too much to the "whims of what may be called 'public opinion'". This concern references the actions of M'Naughten and potential Reagan assassin Hinckley when making the case that the insanity defense and its definition is entirely misunderstood and misapplied in a lot of cases (Blau, McGinley & Pasewark, 1993).

Another complication when it comes to legal defenses up to and including the insanity plea are jurisdictional squabbles between states, counties, and cities. Such has been and continues to be the case in areas like Australia. When it comes to forensic mental health orders, whether it is related to a trial where an insanity defense is at issue or something else, there are pertinent questions about freedom of patient movement, the patient's rights as they are tried and/or sentenced, and so forth (Carroll et al., 2009). Some others take things a step further and actually question how insanity defenses even came to be. The starting point for this analysis comes from the 1867 murder case of Alexander Dingwall in the United Kingdom. Back then, insanity defense murder cases were referred to, at least by Lord Deas, as "murder with extenuating circumstances." About the same time was the last time a person was hanged in public in Scotland, that occurring in 1868.

Not unlike the example cited earlier, they hold in this brief report that intoxication alone as a means to lose the concept of reason and self-control is not enough to prevent criminal liability from being assessed, but things get a lot murkier after that. Indeed, they cited that "alienation of reason" was the main metric used, but it mattered not what the cause of such alienation was. The question of alcohol consumption is relevant in the case of Dingwall because he was apparently quite intoxicated when he murdered his wife. One of the relevant questions during the trial was whether Dingwall was "quite right otherwise" besides his propensity to drink. As the testimony unfolded, it seemed to be clear that while alcohol surely affected Dingwall's mindset and actions, whether he was legally drunk or not, he did not seem to technically be mentally ill.

However, a proponent for the accused held that Mr. Dingwall had several close relatives that had been committed to an insane asylum at one point or another and that this should be held relevant. While there was an ebb and flow to how this all developed, it has generally been held that while alcoholics cannot use their vice as a defense, people that are truly mentally ill through no fault or choice of their own can indeed use the insanity defense, provided their inability to act logically and normally is impeded beyond a certain level (Shiels, 2014).

Another dimension to the insanity defense is how to deal with and how long to confine people that are actually found innocent by reason of insanity. The general principle is that if or when a person is well enough to be a free man or woman, they are to be let go into the world. This can create quandaries and issues for people that have lost friends and/or family because of a formerly sick person's acts. Perhaps one of the most famous examples that can be cited is John Hinckley, the man that tried to shoot and kill former President Ronald Reagan as a means to impress and woo actress Jodie Foster. Indeed, a study of 127 people like that, meaning that they had been acquitted due to insanity, were assessed in terms of whether and when they were readmitted. Encouragingly, roughly three fourths were not readmitted after their initial stay, but one in four is still pretty high given the stakes involved. Indeed, if 100 people are released and a fourth of those are not really qualified and sane enough to remain free, then that is an issue.

Conversely, there is the question as to whether those people were truly insane if they were able to be released at all, since insane people, even if temporarily so, tend to remain in their dysfunction, and this is much more true if they do not keep on their medications and continue getting treatment. Regardless, the average amount of time that "insane" patients were in hospitals when looking at this particular sample size was about half a year. Also, it has to be admitted and stated outwardly that not guilty by reason of insanity cases hardly ever involve murder or other extremely depraved acts, and this sample was no different. For this sample, the reasons for revocation of release included being dangerous to others, non-adherence to medication schedules, non-adherence to therapy schedules, and previous violent charges (Vitacco, Vauter, Erickson & Ragatz, 2014).

Even harder to pin down is the acquittal, conviction, and/or release of patients that are "temporarily" insane. Indeed, many people point to temporary insanity as a "perfect" defense in that a person can escape criminal liability for even the most egregious charges but they will spend little to no time in jail or a mental institution. Examples that could be pointed to are people that are abused or that "lose it" briefly and just "snap" and thus are not responsible for their actions. Put another way, some hold that rather than insanity, these cases are borne of honor, revenge, or tragic circumstance (Covey, 2011).

For example, there was the case of a man that came home to find that his wife had ostensibly killed two of his children and was in the process of killing the third. As it turns out, only one of the first two kids was actually dead and he came home in time to save the third. However, he did not know this detail at the time. Regardless, his first and immediate instinct was to grab a steel Mag-Light flashlight and bludgeon the woman to death with it. One could hold that this man was indeed acting on blind rage and "blacked out" due to the crimes of his wife. However, the man never even tried to plead insanity and indeed pled to second degree murder. That being said, the sentence allowed a good amount of grace so long as the convicted person met certain behavioral and educational conditions. This stands in contrast to Lorena Bobbitt who is famous for excising her husband's penis from his body due to protracted abuse. She was acquitted and never served time in jail post-acquittal. Further, the abusing husband in that situation has gone on to commit similar crimes.

The people that decry the use of temporary insanity as the "perfect defense" point to the fact that the law "universally limits the insanity defense to cases where mental disease or defect causes the cognitive or volitional deficient." The author continues by saying "yet what good is such a requirement when there is no uniform scientific or legal definition of mental disease or defect?" (Covey, 2011). Covey continues by saying that courts have been inconsistent and basically unable to draw up consistent parameters that draw firm lines between what criminals are truly insane and thus not liable for their actions and those that are simply using the defense as a "get out of jail free card" rather than owning up to what they have done. That being said, the claim has held less and less weight as years grind on. Most criminal cases where the insanity defense is invoked never reach trial. Further, the insanity defense has "coalesced around a psycho-medical model of insanity predicated upon the existence of a clinical, diagnosable mental disease or defect" (Covey, 2011).

Smith (2012) states that while it is quite easy to point to the ethics of the lawyers and criminals involved in any legal case, let alone an insanity plea case, the same ethical standards have to be looked at as they relate to the medical professionals involved in the cases. Many hold that the question to be answered is a simple one: whether or not a person was lucid enough to realize what they were doing wrong at the time that they were doing it. That definition, regardless of the caterwauling and jockeying by the lawyers, prosecutors, and defendants, is typically answered by doctors and other medical professionals such as psychologists, psychiatrists, and neuroscience experts. Unfortunately, while many may clamor for firm answers and definitive solutions, they are apparently not as apparent and possible as are surely desired. Further, not only is a solution to this problem not possible now, it may never be.

As noted with other sources, the amount of legal cases where this is even an issue is very small. Less than one percent of all criminal defendants even try to lodge insanity as a defense, and a very small fraction of those people are able to do so successfully. Even so, the friends and family of the victims in those rare cases, not to mention the victims, deserve to have fair and complete justice. If the defendant was lucid, they should face full and complete consequences for what they did. If they were truly insane and unable to think properly and logically, then their punishment should at least be mitigated.

There are three conditions that must be met for not guilty by reason of insanity (NGRI) cases, and they are all related. There must be a mental disorder in question, it must have been active at the time that the crime was committed, and there needs to be a causal link between the disorder and the loss of control over what happened vis-à-vis the crime. There are two main categories that such impairments fall into: volitional and cognitive. Both are fairly easy to define, but assessing whether a person meets one or both and/or applying that to a legal setting or whether a person was "sane" when a crime was committed is exceedingly difficult. Smith goes on to look at "temporary insanity" cases but separates such cases into two groups. The first is the "irresistible impulse" standard, otherwise known as the "policeman at the elbow" test. In other words, would a person have committed the crime if a cop was standing nearby when everything unfolded. If the answer is "yes," then there is a good chance (but not a certainty) that temporary loss of sanity is possible. This stands in contrast to "temporary insanity," which Smith refers to as "fiction" more than reality. He says it is possible for there to be "temporary insanity" just as there is "permanent insanity," but the chances of a person becoming insane and then sane in such a short window is extremely unlikely and quite difficult to answer in a way that is definitive enough for a legal matter like a criminal trial (Smith, 2012).

If there was a way to discern sane people from insane people, objective medical evidence is probably a direction that should be pursued. For example, neuroscience has revealed that things like brain scans and the like can reveal details about the psychological, neuro-psychological, neuroscientific, and neuroimaging details about a patient that was temporarily insane or that remains insane. Indeed, evidence borne of neuroscience tends to be more "persuasive" because of the more objective and evidence-based nature of the science. This stands in contrast to psychiatry and psychology, which is based more on questions, answers, assessments, and opinions based on the perceptions of the medical professional doing the assessment. It is like surmising a person has a fever based on what they say rather than whipping out a thermometer and verifying it scientifically. Indeed, there are many ways in which a psychologist or psychiatrist can go in the wrong direction based on their own misperceptions or the deceit of the patient they are interviewing. Further, jurors around the country have been interviewed and it has been found that they would have been swayed more by neuroscientific information rather than the opinions and perceptions of mental health professionals. This is probably due to the objective versus subjective factors mentioned above (Schweitzer & Saks, 2011).

Yet another way to assess the insanity defense is through a moral lens. While this can be dangerous given that it tends to interweave religion and government, it is still a relevant question, and religion can indeed be excluded without diminishing the gravity of what it means for one person to kill another for any reason and/or any other egregious acts such as rape, robbery, or other violent behavior. When it comes to this topic, Hathaway (2009) speaks to the fact that the insanity defense is "unsatisfactory and is in need of reform." The nascent problem with the insanity defense is that the proper reason and justification for the defense being needed has never been properly defined and calibrated. Some go so far as to say that the insanity defense should be abolished outright. However, there are moral questions as to whether this could or should be done (Hathaway, 2009).

Yet another question that could and should be asked is what should happen when a person's insanity happens due to medication being ordered but it is not taken, and this thus results in a detachment from reality that leads to a criminal act. Indeed, it is the ostensible inverse of a person that drinks alcohol, and those people are held fully responsible even though the intent to kill is not there in the case of a drunk. There is a difference between negligent acts brought on by people that are drunk or high and those that commit acts on purpose and with forethought. However, there is a question of what should happen simply because a person does NOT take a drug and not taking the drug (rather than taking it) is what causes a person to commit a crime, at least in part. While a person being committed back or to a mental hospital is a very real possibility, the question about criminal liability in such an instance is a tad more complicated.

The flip-side to that question is the morality and allowance for forcible commitment and medicating and just how far the authorities can go in enforcing the taking of medication. However, in light of the murderous or similar acts that can occur when a person is not properly treated and medicated, there is clearly not a clean and easy answer to the question. Even medical professionals can be ensnared in liability, whether it be civil, clinical, or criminal (Torry & Weiss, 2012).

Another thing to consider are crimes or alleged crimes that occur in war arenas. Recent and obvious examples are the wars in Afghanistan and Iraq. To a lesser extent, one could make the case for cops and other people that are consistently and pervasively exposed to stress and how this wearing down can lead to split-second choices that end lives or at least greatly change them. There is also the question of the criminals and other actors involved with said soldiers and police officers. After all, one person's terrorist is another's freedom fighter, and the lines between the two are not nearly as clean and clear as some would have the public believe. Even Muslim extremists feel justified in taking up arms against American soldiers due to the wars and behaviors of American soldiers and politicians over the years, even if the applicable Americans laugh off or reject such assertions (Muslim & Chaleby, 2007). Further, there are some cases that are so egregious and beyond explanation that insanity seems to be the only viable explanation. For example, there are women who are new mothers that actually kill their children. There are others still that try to harm their fetus in utero, and there is the dual question of whether the mother can or should be charged and whether the fetus should be treated as a life regardless of the answer to the first question due to the implications this opinion would have on abortion and its legality (Rhodes & Segre, 2013). There is also the question about whether disorders such as post-traumatic stress disorder (PTSD) can be used as a defense for sexual assault of children (Grover, 2007).

Insanity can sometimes be induced by other people exerting mind control and other coercion on another. Indeed, brainwashing is asserted by many to be a legitimate defense against culpability for a crime. Famous examples of this being at least plausible is the Patty Hearst case and the Washington DC sniper case. In both instances, the pertinent question is whether the people in question could have or would have ever acted in the ways that they did had they not been controlled and harnessed such as they were. Indeed, when people talk about what is known as Stockholm Syndrome, they are essentially referring to Patty Hearst. Stockholm Syndrome is when somebody that normally does not break the law or would never hurt others is coerced into taking up with his or her captors, and that is precisely what Hearst did as it relates to the Symbionese Liberation Army (SLA) (Emory, 2010).