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The Insanity Defense: It’s Not What You Think

by Christopher Zoukis

In the American criminal justice system, a defendant who commits a crime while “insane” cannot be held legally responsible for that crime. In such cases, legal guilt is not established, and the defendant may not be punished. Instead, a defendant who is found not guilty by reason of insanity (“NGRI”) is involuntarily committed to a psychiatric facility. In theory, once the defendant is treated and judged no longer dangerous, he or she is released.

However, this is not what happens in practice. Studies by the American Psychiatric Association show that defendants found NGRI are likely to spend just as much time confined in a psychiatric hospital as they would have spent in prison following a conviction. And according to The New York Times, a 1983 national study found that NGRI defendants “often lost their freedom for twice as long as those actually convicted of the same offense.”

A 30-year-old study is as close as we can get because the data on those found NGRI are sparse, to say the least. There is no federal oversight or tracking of how long these individuals stay incarcerated or why. But according to a 2017 National Association of State Mental Health Program Directors study, there are more than 10,000 people who have been found NGRI or incompetent to stand trial, and are involuntarily confined in psychiatric hospitals.

It is not clear how many of these individuals are no longer dangerous, but experts in the field suspect that there are many. And they remain confined for improper reasons.

“People are kept not because their dangerousness is because of mental illness,” said W. Lawrence Fitch, a consultant to the National Association of State Mental Health Program Directors. “People stay in too long, and for the wrong reasons.”

The number one reason is politics. Elected judges and district attorneys play a gatekeeping role in the decision to release or retain an NGRI defendant. Crimes committed by NGRI defendants often involve heinous violence. As such, the decision to release a no longer dangerous patient frequently sparks community outrage. No elected official wants to be on the wrong end of a public outcry, and that outcome can be avoided by keeping NGRI defendants confined.

The release of John Hinckley Jr. in September 2016 is illustrative. Hinckley, who shot President Ronald Reagan in a delusional attempt to impress actress Jodie Foster, was incarcerated at a psychiatric facility for 35 years before his release. His doctors declared his mental illness in remission over two decades ago, but he remained locked up. Political calculation and risk aversion certainly played a role in the delay of his release. “That anyone can justify keeping him in the hospital” for an extra 20 years, Fitch told The New York Times, “is just nuts.”

Chris Slobogin, director of the criminal justice program at Vanderbilt University Law School and national expert on mental health law, suggested that part of the problem is a function of the American thirst for retribution, combined with a strong desire to not let anyone get away with a crime. But, it’s “immoral to deprive someone of liberty because you’re mad at them for being found NGRI.”

“This is a group of people that are incredibly stigmatized and misunderstood in terms of how dangerous they are,” observed Slobogin, who was a member of an American Bar Association task force that revised mental health standards related to the continual detention of NGRI defendants.

In fact, risk aversion may not be a valid reason for keeping NGRI defendants indefinitely confined at all. Recidivism rates for this population are considered low when compared to the national average of more than 60 percent. According to Fitch, “people who are found NGRI tend to go back out into the community, and they tend to do really, really well.”

The NGRI system operating as intended could actually spell its own doom. Consider the case of a Nebraska man who was found NGRI and whose most recent diagnosis was “cannabis abuse, unspecified.” He has been confined in a hospital for 37 years. At first blush, this sounds outrageous until, according to The New York Times, “you learn that he killed six people, three of them children. Two of his victims he raped. One of them was dead when he did it. The other one, who was alive for the assault, was 10.”

Therein lies the tension between absolving a mentally ill individual of guilt for a crime and the visceral reaction to the heinous nature of that crime. According to Paul Appelbaum, professor and director of the division of law, ethics, and psychiatry at Columbia University, keeping some NGRI defendants confined for longer than they should be may be the price we pay for having the defense at all.

“There are injustices that are imposed on individuals,” conceded Appelbaum. “But I also see at a 30,000-foot level why the system works that way, and recognize perhaps the paradox that if it didn’t work that way, we might lose the insanity defense altogether, or at the very least have an even more restrictive system that we have to deal with.” 



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