Some Thoughts on Insanity Defense

Tina Minkowitz, Esq.
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I am glad to see more discussion in our movement about the insanity defense, and more solidarity with people locked up in forensic psychiatry or otherwise incarcerated on criminal charges and psychiatrized.

I have written in opposition to the insanity defense from a perspective of equal legal capacity, seeing the capacity to be held accountable for harm done to others or to the community as a corollary of the capacity to exercise rights, assume obligations and create legal relationships.  I have also written in opposition to forensic psychiatry from a human rights perspective, since it is no different than civil commitment to institutions in that it is an illegitimate discriminatory detention in which medical personnel determine when a person can be released, based on their classifications and opinions about a person’s disability.  Medical classification of behavior inherently raises issues of disability-based discrimination because it is attaching a negative social valuation to a label that becomes an attribute of personal defect.  (For these writings see materials under Legal Capacity and under Prison Reform/Abolition and CRPD, on the CHRUSP resources page.)

More recently I was challenged to look at the issue a little differently, though I have not changed my basic position.  Linda Steele and Fleur Beaupert raised the question from a disability perspective as to whether the problem is not the insanity defense per se but that there is discriminatory treatment of an insanity acquittal compared with other acquittals.  Insanity acquittals rarely result in actual release from custody, instead the person goes into forensic psychiatry, and is often held longer than the sentence for the crime of which they were supposedly acquitted.

That made me start thinking about the justice issues involved in how a person should be treated if they are in a state of altered reality or extreme distress when committing a crime.  I think I would want some leniency in that situation, but I am not comfortable with an all-or-nothing insanity defense that is both legally and socially stigmatizing because it sets the person apart as someone who is legally determined to be incapable of being treated as a moral agent.   This stigma spills over onto all people who are psychiatrized, and it is part of the conception of madness that also ends up serving as a justification for civil commitment, since we are perceived (incorrectly) as outside the reach of ordinary law.

Many of the people incarcerated in forensic psychiatry are not in the classic situation that lives in the public imagination – shooters who respond to command hallucinations that they are unable to control.  Just as with ordinary prisons, a large number of people are locked up for trivial and unfair reasons, and had incompetent legal representation at trial.  Racism, misogyny, all kinds of other-ing in addition to disability (psychiatrization) add up the unfairness.  So it is desirable to think about what would eliminate the unfairness, as well as the development of restorative alternatives and the decriminalization of conduct that is not per se harmful.

Similarly to how we arrived at the model of support in exercising legal capacity by looking at what might be actually needed and wanted when a person has difficulty making decisions, as opposed to the removal of control that comes with guardianship – we could look at the possibility for leniency in relation to factors that might have affected a person’s decision-making, in adjudicating criminal responsibility, without issuing a judgment that classifies the person as being outside ordinary law or morality.  This would separate the question of disability from the question of what it is to be a moral agent and a member of the community.  We might be talking about applying doctrines that already exist in criminal law, or creating new doctrine and a new disability-inclusive inquiry that would apply in all cases so that the person is not subjected to labeling.  An acquittal would be an acquittal, period, but there should also be options for reduced charges.

This approach may be conceptually satisfying but it would also have problems from the standpoint of intersection with racism and how it would be applied in practice; as we see with Stand Your Ground laws, any principle calling for leniency tends to be applied in ways that serve those who are already privileged.  I do not know how to address this, but it is worth exploring.

I think it is also defensible to argue for abolition of forensic psychiatry first, so as to treat insanity acquittals as true acquittals and use all the vehicles for leniency that we have, given the monumental injustices in criminal proceedings and the prison system.  But ultimately, the prejudices associated with a specific adjudication of insanity also have to be eliminated from law as a barrier to full citizenship and equality.  (For example, people adjudicated ‘not guilty by reason of insanity’ are included in the FBI NICS database of individuals prohibited from gun ownership.)

There are hard questions involved in looking at criminal responsibility.  Survivors of violent crimes want to know that perpetrators will be held accountable and punished.  Survivors of any kind of abuse, whether or not it can be prosecuted as a crime – including psychiatric abuse – do not want to absolve perpetrators based on the idea that “they didn’t know what they were doing.”  Many of us have been abused by people who were themselves survivors of abuse, and we know that trauma doesn’t automatically make a person abusive, but that it is a choice.  (A good book in this regard is Why Does He Do That?: Inside the Minds of Angry and Controlling Men, by Lundy Bancroft.  Thanks to whoever posted about it on Facebook; I am reading it and find it enlightening.)

Still, I think that a discussion of leniency without all-or-nothing absolution, condemnation or segregation as being immune to ordinary morality is helpful to examine in each situation, what is abuse and what is extenuating circumstances?  Opening up the questions would be a more meaningful kind of justice; and that already goes to the restorative/transformative justice model that is largely missing from our system.

Caveat, I do not consider this to be in any way about “therapeutic jurisprudence” or giving scope to psychiatric opinion in determining questions of leniency.  While some writers whom I respect refer to “therapeutic jurisprudence” in their work that contemplates justice as healing and healing as justice (the Honorable Robert Yazzie, Chief Justice Emeritus of the Navajo Nation, writing in the newsletter Justice as Healing, published by the Native Law Centre in Saskatchewan), from a psychiatric abuse survivor perspective it is a concept to avoid.  I would say that the link between healing and justice needs to be made by building trust on all sides and not by handing over justice issues to professions (or even to a conceptual framework associated with those professions) that have repeatedly violated trust and perpetrated torture with drugs and electroshock and mind games of dominance and control.  This criticism is itself the application of a restorative perspective, which I would want to see mainstreamed and not limited only to situations involving those who identify as survivors.

I look forward to discussion, and to hearing more from people directly impacted by the insanity defense and forensic psychiatry.

27 COMMENTS

  1. Tina, could you please tell me who makes the decision? Is it solely up to the defendant or does the prosecutor and/or Judge have input into the decision? What happens if a defendant declines the insanity defence but then clearly displays symptoms of a mental disorder during Court proceedings?

    Also, when you say you would want leniency for someone who is “in a state of altered reality or extreme distress when committing a crime,” I am wondering what “leniency” means here. Do you want lesser punishment without specifying that the defendant has a disorder? I’m not sure how that would work. What would be the basis for the leniency, then?

    I had never thought about comparing insanity acquittals with regular acquittals in terms of discrimination. If the insanity defence were removed, regular acquittals likely wouldn’t increase. In other words, I don’t think it’s usually a choice between two kinds of acquittals but rather between a guilty verdict and an insanity acquittal.

    I’m also aware that involuntary psychiatric treatment happens in prison, too, so it’s not like declining an insanity defence guarantees a person won’t be medicated against his will.

    • Our legal systems may be vastly different, of course. Here, you plead NCR (not criminally responsible) instead of going to trial so it’s really not accurate to call it an insanity acquittal. It’s more like an insanity bypass. As many have already noted, it’s a difficult decision to make.

      • Still wondering about this. Why should a defendant be entitled to only the benefits of an insanity defence? It’s a bit like saying the mentally ill should get a free pass from their responsibilities. Now, I do understand (but don’t agree with) Thomas Szasz’s position but this article seems like a new twist.

  2. My own take on this Tina, is the criminal justice system just as the psychiatric system has to go for nothing will work which begin from any any of these conceptualizations. Dispensing with both frameworks, we are in a better position to respond to the problems that occur in society, whether it be VORPs, peace-building, or what have you–all of which would have to be predicated on some kind notion of moral agency and co-responsibility.

  3. Tina,

    Your essay makes me want to ask you questions about the overlap in what seems to me are two competing justice systems.

    Medical classification of behavior sets up a convenient parallel justice system, a system of state-sponsored vigilante justice. There seems to be a broader spectrum of sentencing based on extenuating circumstances in the traditional justice system than in this overreaching parallel system that seems to be competing for bodies.

    (There’s a nice dramatization of this in the novel The Devil in Silver by Victor LaValle. A person who has become a nuisance to the police in Queens, NY, is brought to a mental hospital and is quickly committed, drugged up with neurotoxins and locked up. )

    With the DSM in hand, inconvenient behaviors are now ticketable offenses for which any of us can be condemned to periods of isolation, forced tranquilization and incarceration. I know people who’ve gone through all of this plus remain on psychiatric probation when released, for spitting on a person with state authority as a first offense. This offense will get one a life long bi-polar label within minutes. This parallel system of summary justice requires a lot less time and paperwork for the police, and guarantees that the person, whose behaviour is found to be a nuisance, won’t be released after a few hours, maybe not even for a few months. And when they are released, it will be with the leash of either probationary officers in the form of ACT compliance enforcing teams allowed to trespass unannounced at their homes to ensure the person remains under chemical incarceration.

  4. Lots of things to think over. I agree that prison abolition/reform has to be discussed at the same table as the abolition of forced psychiatry. The NGRI plea is often chosen because the offender realizes he may not survive the prison experience. Every defendant knows that prison means (usually gang) rape. In all this time, and after all the federal lawsuits over prison conditions (and mental hospital conditions), which tend to result only in more air conditioning and more staff at higher salaries, the “experts” seem to have never found a technique of stopping prison rape. Isn’t that odd? We must always be mindful of the behaviors of systems and the people who are employed as cogs in those systems – e.g. the work of Dr. Philip Zimbardo (The Stanford Prison Experiment) and the Milgram experiments (establishing that most people will gladly harm unto death, another human being they have no reason to hate, as long as a person in “authority” tells them someone else will take responsibility). So, to the extent that prisons and mental hospitals are staffed by those not acting as individuals and without any real accountability, they are unlikely to achieve any legitimate rehabilitative or “treatment” goals. The most they can do is isolate people who have truly harmed others and are likely to do so again, from the rest of us. But even if we wanted to limit incarceration only to true psychopaths (a way of saying purely evil but not “mentally ill”) who commit acts of violence, could we count on the other systems – the courts – the juries, etc. to get the facts right as to who is and who is not in such a category?

    One remedy I understand was used by native Americans was a type of shunning – in some religious communities also called disfellowshipping even now. It was a way for the community to achieve at least the goal of isolating the person from the community where he had harmed someone. It involved casting the person out of the community upon which he depended for food, shelter, and fellowship. It’s no perfect solution and can certainly be used harshly. It could effectively be a death sentence. Plus it’s not even true isolation because the person could return and wreak havoc on the ones who shunned him. But at least it’s not an overt act of aggression being committed in the name of every man, woman, and child in the wronged community. Which I think is a big part of what is wrong with capital punishment and forced psychiatry- apart from its discriminatory application and the irreversible consequendes of getting the facts wrong. Capital punishment, like psychiatric torture and involuntary confinement of all types, is behavior that at some level the community that inflicts it has to own. Do we really want to be identified with abusive systems set up in our names and for our “protection”?

    • “One remedy I understand was used by native Americans was a type of shunning – in some religious communities also called disfellowshipping even now.”
      Well, that can only work in small communities. In today’s world the person would just move neighbourhoods or cities and go on committing violence.
      I am not sure if total abolition of prisons is even possible as I am strongly against death penalty – I’d be unsure what to do about a serial killer who openly says “if you let me out I’ll kill again”. But it should be minimised and people should be held in humane conditions. Also rehabilitation should be offered. People often mention the Norwegian prison system as a model, I don’t know how well it really works but it’s supposedly very lenient and has very good results comes recidivism.

  5. That is a complicated matter but in essence I agree with you – the insanity defence as it is used now as well as the idea that sending people to psych wards for an undetermined amount of time to be drugged and stripped off of rights to their own bodies is somehow better than jail are ludicrous and we see just how much harm and injustice is done in the process.
    I think that the justice system is perfectly able to adjudicate cases of crime when a person had limited ability to recognise the meaning of its actions without the need to psychiatry to step in. Judges routinely deal with cases when people are intoxicated or act under strong emotions (unfortunately if the psychiatric assault on civil rights continues it may soon not be true – they will all get labelled “sick” and be funneled to psychiatric/pharma complex). I have a friend who’s a judge and she had to take decisions like that in cases of child or animal abuse by people who clearly had intellectual disability – she refrained from strong punishment and limited it to protection of the victims by either removal of them from the dangerous person or putting them under supervision.
    What also worries me about the current system is the idea that if someone is labelled as mentally ill all of this person’s criminal actions must be a result of this illness. That is clearly not true – a person in a psychotic state may commit a crime because of some delusions and hallucinations but the same person can commit a crime while 100% lucid. It results is total injustice when some people “get away with it” for serious crimes and others are locked up in psych wards for minor infractions. The crime should be always judged on the circumstances of it – if a person was competent to control and understand his/her actions at that moment and not because they have been diagnosed with something 3yrs earlier.
    Also do any statistics exist as to how many violent crimes (resulting in serious bodily harm or death) are really committed by people in psychotic states as opposed to all such crime? My guess it’s a tiny fraction…

    • Just to add: the above mentioned judge friend has told me that she purposefully avoids calling in “professionals” on cases like that since she knows that would lead to incarceration of these people in psych wards resulting in destruction of families and lives without improving anything. So taking account of mental disability or distress without any use of psychiatry is possible in the legal system and in some cases it’s being practiced.

  6. Hi Tina,

    I’m currently researching the compatibility of the Insanity Defense with the UNCRPD and have found your writing incredibly insightful. However I was wondering what your thoughts were on the defense from an Article 13 analysis? Surely you would agree the abolition of the defense whilst reducing stigmatisation and increasing equal recognition, could lead to people being held culpable when they shouldn’t? Thus raising issues around access to justice.

    Would love to hear your thoughts.

  7. Tina – Your selection of Slobogin in your 2015 continuation of this topic presents the greatly needed study in contrasts that illuminates the differences you and Bonnie Burstow are talking over above–that is, I see to look for that there, now. I think that his proposal makes the ideal pivot for moving between how to aim for one or the other route to change. For one thing, because he makes his case so plausibly by ordinary standards of social acceptability for “diminished mental capacity”, saying that we aren’t discriminating by considering persons as subject to compulsive derangements, however much their capacity is diminished being the expert’s call. A mental patient is a mental patient, a real qualitative difference. He was and he is, or … she wasn’t but should’ve been. For another thing, he asserts his premises on the matter as though they were reasoned conclusions, and still makes himself sound forthright. So he does knows something about what he doesn’t know that he could learn in order to do better jurisprudential theorizing…. Just offhandedly considering, and my perceptions may not be correct. But what is true and known is that I could only feel like reading such material as the Slobogin article given the framework provided by your work and attention to the matter. In addition, how very nice and easy to believe that the psychiatrization issue can inform the native justice debate on more general points of legal interpretation, whether in reciprocity or not.

  8. In the US, I believe I recall reading that the number of accepted insanity defenses was 0.1%. However, those who attempt it are frequently treated much more severely by the jury. There is an assumption in this country that mental illness is an excuse… A way to get away with murder. When the jurors were interviewed following the sentencing of notorious serial killer, John Wayne Gacy, they were asked about his attempt to plead insanity. One juror said simply, “Oh, we all knew he was crazy; we just thought he should fry anyway.”
    Our current attempt at justice is anything but just. Defendants who were found unfit to stand trial are simply shipped to an institution and medicated until they can sit quietly while they are found guilty. They are being sentenced based on their prior state of mind, and their guilt is being determined based on their state of mind after being heavily medicated. This is often a result of a public demand for justice based on a complete misunderstanding of what the word means. In the law, justice merely means to treat everyone the same.