Empirical Research on the Insanity Defense and Attempted … · 2017-08-26 · Empirical Research on the Insanity Defense and Attempted Reforms: Evidence Toward Informed Policy Randy

ErrataThis article entitled 'Empirical Research on the Insanity Defense and At-

tempted Reforms: Evidence Toward Informed Policy' by Randy Borum and Solo-mon M. Fulero originally appeared in Volume 23, Number 1 (February 1999). Thisarticle was printed with numerous references mistakenly omitted. Reprinted belowis how the article should have appeared.

Empirical Research on the Insanity Defense andAttempted Reforms: Evidence Toward Informed Policy

Randy Borum1 and Solomon M. Fulero2

The paper addresses some common questions about the insanity defense and issuesraised by commonly proposed "reforms." The first section begins with a brief descrip-tion of the insanity defense and the reasons for its existence in the law. It then examinessome of the popular myths and public misperceptions surrounding the insanity de-fense. The next three sections discuss proposed "reforms" and the empirical researchthat addresses their effect. These reforms, including various procedural changes indefinitions, burden of proof, and expert testimony, the institution of a guilty butmentally ill verdict, and the abolition of the insanity defense itself, are reviewed, alongwith relevant research findings and policy issues. Finally, the development of soundconditional release programs for criminal defendants found not guilty by reason ofinsanity is proposed as a reform option which could serve the objectives of enhancingpublic safety and access to appropriate treatment while continuing to meet the objec-tives of the insanity defense within criminal jurisprudence.

Virtually all of us can recount the details of a well-publicized insanity defense casein our home state. For example, on January 26, 1995, a 26-year-old law studentnamed Wendell Williamson armed himself with a rifle he took from his father'shouse. He then walked through the streets of a college town in North Carolinashooting at people in his path. By the end of this incident, two people were dead

1Department of Psychiatry and Behavioral Sciences, Duke University Medical Center, Durham, NorthCarolina 27710; e-mail: [email protected].

2Department of Psychology, Sinclair College and Wright State University School of Medicine, Dayton,Ohio 45402; e-mail: [email protected].

3750147-7307/99/0600-0375$16.00/1 C 1999 American Psychology-Law Society/Division 41 of the American Psychology Association

Law and Human Behavior, Vol. 23, No. 3, 1999

(a university student and a local resident), and several others, including one policeofficer, were wounded.

It quickly came to light in the media that the suspect had been treated forparanoid schizophrenia, but in recent months he had allegedly stopped taking hispsychotropic medication. At trial, he put forth a defense of "not guilty by reasonof insanity" (NGRI) and was found NGRI by a jury in the county where theshootings took place.

During and after the trial there was strong public reaction to the incident, bothto the jury's decision and to the insanity defense in general. Two state senatorsresponded by proposing legislation to repeal the defense of not guilty by reasonof insanity and replace it with a "guilty but mentally ill" (GBMI) provision. Thiscontroversial case, the public reaction to it, and the subsequent attempts to "reform"the insanity defense in North Carolina all mirror what has happened in other statessuch as Ohio and Arizona (Borum, 1997; Fulero, 1997; O'Connor & Bayer, 1997).

This paper addresses some common questions about the insanity defense andissues raised by commonly proposed "reforms." The next section begins with abrief description of the insanity defense and the reasons for its existence in thelaw. It then examines some of the popular myths and public misperceptions sur-rounding the insanity defense, since they are commonly part of the impetus for,and discourse about, its reform. The subsequent three sections discuss proposedreforms and the empirical research that addresses their effect. These reforms,ranging from various procedural changes to the institution of a GBMI verdict andthe abolition of the insanity defense itself, are reviewed, along with relevant researchfindings and policy issues. Finally, the development of sound conditional releaseprograms for criminal defendants found NGRI is proposed as a reform optionwhich could serve the objectives of enhancing public safety and access to appropriatetreatment while continuing to meet the objectives of the insanity defense withincriminal jurisprudence.

THE INSANITY DEFENSE

Doctrine of the Insanity Defense

To establish that an individual is guilty of a crime, the state must prove atleast two components: first, that the defendant engaged in proscribed conduct orcommitted the illegal act in question (referred to as actus reus); and second, thatthe defendant committed this act with criminal intent (referred to as mens rea)3.Different offenses may require different levels of intent. For example, in NorthCarolina, an indictment for a charge of murder requires a declaration that thedefendant killed "willfully and with malice aforethought," whereas that elementfor man slaughter only requires that the killing be done "willfully." (North Carolina,1998, §15-144). Similarly, in Ohio, an aggravated murder charge requires that the

3Block's law dictionary defines mens rea as "As an element of criminal responsibility: a guilty mind; aguilty or wrongful purpose; a criminal intent; guilty knowledge and willfulness" (p. 680).

376 Borum and Fulero

defendant killed "purposely, and with prior calculation and design," while murderrequires only that the killing be done "purposely" (Ohio, 1998, §§2903.01,2903.02).

The criminal law assumes that persons act with "free will" and that they shouldbe held responsible for their own behavior (Perlin, 1994). The insanity defensedoctrine, however, excepts from criminal responsibility and culpability a narrowclass of persons who have some form of severe mental illness or disability whichimpairs either their cognitive abilities (e.g., the ability accurately to perceive realityand to make rational and reasonable inferences based upon them) or their volitionalabilities (e.g., the ability to control their own behavior) in such a way and to suchan extent that their will is compromised.

Most states use one of two insanity defense standards: the M'Naghten or theAmerican Law Institute Model penal code (ALI) definitions.4 The ALI standardprovides that "a person is not responsible for criminal conduct if at the time ofsuch conduct as a result of mental disease or defect he lacks substantial capacityeither to appreciate the criminality [wrongfulness] of his conduct or to conform hisconduct to the reqirements of the law" (American Law Institute [ALI], 1962, §4.01).The M'Naghten standard requires proof that at the time of the offense, as a resultof a mental disease or defect, the defendant was unable to know the nature orquality of his act or was unable to know that the act was wrong. [See, e.g., Ohio,1998, §§2901.01(A)(14), 2945.391]. The M'Naghten test is generally considered tobe the more narrow and conservative one because it includes only a cognitivecomponent (knowing that one's actions are wrong), whereas the ALI test adds avolitional component (see Wettstein, Mulvey, & Rogers, 1991).

Under the insanity defense, persons meeting this narrow definitional exceptionare not held criminally responsible for behavior that meets these conditions. Becausethey are not criminally culpable, they are not "guilty" of a crime in the eyes of thelaw, even if they actually committed the act in question. Many who misunderstandthe essence of the insanity defense ask how someone can be called "not guilty"when it is clear that they did the act, since the term "guilty" is generally thoughtto apply when a person has engaged in some proscribed conduct.5 However, inassigning "guilt," the law is not only concerned with an individual's actions (theactus reus element), but also with an individual's state of mind (mens red) at thetime he or she commits an act. For example, the law generally prohibits the inten-tional killing of another person. However, if an individual kills someone becausehe/she reasonably believes that his/her life is in imminent danger, that individualmight not be held criminally responsible for the other person's death. In legal terms,then, that person might be found "not guilty" even though he/she intentionallykilled another person.

Because those found NGRI are "not guilty" in the legal sense, they are not

4Not all jurisdictions use these definitions; law in the Virgin Islands, in the United States Third Circuit,states that: "All persons are capable of committing crimes or offenses except ... (4) Persons who arementally ill and who committed the act charged against them in consequence of such mental illness.... Virgin Islands Code, Title 14, Chapter 1, Section 14.

5In recognition of this issue, Oregon has revised the name of the insanity defense to "guilty except forinsanity" (Oregon Revised Statutes 161.295) This idea is one which, arguably, should be adopted inother states as well.

Insanity Defense and Attempted Reforms 377

subject to criminal sanctions for their behavior. However, they are likely to becivilly committed to a psychiatric hospital (see below). This alternative dispositionis rooted, in part, in a belief that punishment would not serve as a deterrent, orthat one should not be punished for an act that was not performed with criminalintent, and also that treatment is a more appropriate disposition for such personsthan imprisonment.

Perceptions and Misperceptions of the Insanity Defense

The insanity defense is one of the most controversial areas in the criminal law,and is plagued by many myths and public misperceptions. Often, the impetus forinsanity defense reform, including calls for the abolition of the insanity defense,arises from concerns that (a) the insanity defense may be overused, (b) it is usedalmost exclusively in heinous crimes, (c) people who are acquitted as NGRI simply"go free" or are quickly released, and (d) NGRI acquittees, perhaps because of theirmental disorder, are particularly dangerous. Current research findings, however,contradict many of these commonly held beliefs (Perlin, 1994; Melton, Petrila,Poythress, & Slobogin, 1997).

Prevalence of Insanity Pleas and Acquittals

Although there is some variability across jurisdictions, on average the insanitydefense is raised in less than 1% of all felony cases, and is only successful about15-25% of the time. It is the publicity of these cases that makes it appear so muchmore common.6 In a survey of seven states, the rate of insanity pleas ranged from.29 to 1.73 with an average of .85 (less than 1%) per 100 felony indictments. Theaggregated success rate for insanity pleas in that survey was 28.1%. (Cirincione,Steadman, & McGreevy, 1995). Similar findings have emerged from at least twoother studies. A four-state study reported that the rate of success for insanity pleasacross all states was 22.71% (Steadman, McGreevy, Morrissey, Callahan, Robbins, &Cirincione, 1993, p. 28), and a national survey reported that the median successrate for insanity pleas was one acquittal for every 6.5 pleas (approximately 15%)(Pasewark & McGinley, 1986).

Use of the Insanity Defense in Murder Cases

Murder cases account for only about one third or less of insanity defenses(Rodriguez, LeWinn, & Perlin, 1983), and the success rate is no better for thesethan for non-murder defendants (Steadman, Keitner, Braff, & Aravanites, 1983).For example, results from an eight-state study showed that only 14.3% of defendantspleading insanity were charged with murder (Silver et al., 1994). Still, a survey ofattorneys found that 80% believed that the insanity defense was used consistently

6In a content analysis of stories from United Press International, violent crime was the focus in 86% ofthe articles involving a former mental patient (Silver, Cirincione, & Steadman, 1994, p. 64). This typeof selective reporting is bound to influence the public's perceptions of a link between "insanity" andcrime. Additional factors contributing to this perception are (1) the excessive publicity given to high-profile insanity pleas such as those of Jeffrey Dahmer, John Hinckley, and Lorena Bobbin, and (2)the increased likelihood that insanity defense cases (as opposed to non-insanity-defense cases) will bereported upon.


for certain types of offenses, the most frequent of which was perceived to be murder(Burton & Steadman, 1983).

Disposition of NGRI Acquittees

Most states have a statutory provision for the commitment of NGRI acquitteesto a 24-hr psychiatric facility at least for a period of evaluation (Steadman et al.,1993; North Carolina, 1998, §15-144). Although there is a popular perception thatinsanity acquittees often go free, in many jurisdictions and for most types of offenses,defendants who are found NGRI are actually confined as long as or sometimeslonger than defendants who are convicted on equivalent charges.7 A survey of sevenstates comparing relative lengths of confinement for people acquitted as NGRIversus those found guilty of similar offenses yielded the following findings: in twostates (Georgia and Ohio), NGRI acquittees spent less time confined than thoseconvicted; in three states (New Jersey, Washington, and Wisconsin), they spentapproximately the same length of time; and in the remaining (and largest) twostates (California and New York), the NGRI acquittees were confined for longerperiods than those found guilty (Silver, 1995, p. 375). Another study in Arizonafound comparable lengths of confinement; however, over research in Connecticut,Colorado, and the District of Columbia found longer periods of confinement forNGRI acquittees than for convicted prisoners (Miller, 1994).

Dangerousness of NGRI Acquittees

Despite persistent public perception to the contrary, the recidivism rate forNGRI acquittees is actually no greater than that of felons.8 A study in New Yorkcompared a matched group of NGRI acquittees and convicted felons, and found thatduring the follow-up period, 24% of the released NGRI acquittees were rearrested,compared to 27% of released felons (Pasewark, Pantle, & Steadman, 1982). Simi-larly, Steadman and Braff (1983) report comparative rearrest rates of 35% for NGRIacquittees and 39% for convicted felons in their sample of offenders.

Public misperceptions about these and other related issues often drive thenotion that the insanity defense is "broken," inappropriate or misplaced. As notedby Finkel and Fulero (1992), they are also regularly part of the rhetoric in calls forinsanity defense reform. However, the development of sound policy or reform canonly be enhanced by reliance on empirical evidence. A number of different types ofso-called reforms have been proposed and attempted. These range from proceduralchanges in definition, burden of proof, and expert testimony, to more drastic reformssuch as the implementation of a GBMI verdict and the abolition of the insanitydefense. The next three sections examine each of these in turn.

'Although early research on the relative lengths of confinement among NGRI acquittees was somewhatinconsistent (Silver et al., 1994, p. 65), more recent, multisite data tend to suggest that many NGRIacquittees are confined as long as or longer than their convicted counterparts. See also Rodriguezet al. (1983): NGRI acquittees spend almost twice as long in confinement as people convicted ofsimilar charges.

8See Pasewark, Pantle, and Steadman (1979): 19% of 107 NGRI acquittees were rearrested after releasefrom the hospital, most for nonviolent offenses.


"TINKERING" WITH THE INSANITY DEFENSE:PROCEDURAL REFORMS

Various procedural reforms have been proposed over the years by those un-happy with the insanity defense. However, when examined empirically, most appearto have had little impact on the actual use or success of the defense. A summaryof the research on the impact of these sorts of reforms is presented below.

Revising the Substantive Test of Insanity and Jury Instructions

Although there has been a fair amount of both naturalistic and analogueresearch on this issue, clear conclusions are still not possible. This may be due inpart to a disheartening series of studies showing that juror comprehension of juryinstructions is rather poor. For example, using jury instructions for the M'Naghtenstandard, Elwork and his colleagues (Elwork & Sales, 1985; Elwork, Alfini, & Sales,1987) have found the rate of juror comprehension to be about 30%, and even whenrewritten for maximum comprehensibility, the rate rose only to 51%. James (1959;see Simon, 1967) found that jurors accurately recalled only 58% of the insanityinstructions they were given, and that this information was the least well understoodof all information presented to them. Arens, Granfield, and Susman (1965) foundjuror comprehension of insanity defense standards to range between 31% and 40%accuracy. Clearly, if jurors cannot understand instructions on insanity, it would behard for them to apply them accurately to a case (Ogloff, 1991). Nonetheless, theanalogue or mock jury studies tend to show jurors do not produce significantlydifferent verdicts when they are judging a defendant according to different substan-tive insanity criteria given to them in the form of jury instructions (Finkel, Shaw,Bercaw, & Koch, 1985; Finkel, 1989,1991; Ogloff, 1991).

While the mock jury studies are important, they are perhaps somewhat lesssalient for policy decisions than studies of actual impact in legal cases, in partbecause they tend only to look at acquittal rate rather than at the broader use ofthe plea, and also because few insanity cases proceed to a jury trial. Several stateshave examined the actual impact of changing from a M'Naghten standard to anALI standard, and generally have found an increase in the number of insanityacquittals.9 Pasewark and colleagues, however, had different findings based ontheir study of changes to the insanity defense in Wyoming,10 although that state's

'See Sales and Hafemeister (1984). When Maryland switched tests from M'Naghten to ALI, the NGRIacquittal rate among evaluated male offenders went from 8% in 1966 to 19% in 1973. Reynolds, (1984)studied the impact of a shift from the M'Naghten to the ALI standard in Oregon; in the 6 years priorto the change, there were 44 NGRI acquittals compared to 734 in the 10 years following the change.When California switched from M'Naghten to ALI, there were 187 NGRI acquittals in the year precedingthe change and 270 in the year following (Slobogin, 1985). For a possible explanation, see Wettsteinet al. (1991), who conducted a survey of psychiatrists asking them to rate which of the varying criteriafrom the ALI, APA, and M'Naghten standards were met by the defendants they evaluated. Althoughthere was a strong correlation among the cognitive criteria, almost 25% of those who were assessed asbeing NGRI met only the ALI volitional criterion, suggesting that use of this criterion might identifya broader group for acquittal.

10In Wyoming trends were examined over a 6 year period in which three different standards, includngALI and M'Naghten, were used. They also changed to bifurcated trials, then switched back. Therewere no major differences in the plea rate, success rate, or characteristics of defendants using the defense.


M'Naghten test also had an "irresistible impluse" clause which made it structurallysimilar to the ALI standard to begin with. Likewise, in 1982, California changedfrom the ALI standard to the more restrictive M'Naghten rule in an attempt toreduce insanity acquittals; however, there appeared to be no significant changes inrates of insanity pleas, acquittals, or NGRI verdicts. There was a steady decreasein plea rate throughout the study, which was probably attributable to legislationdesignating a maximum term of confinement for NGRI acquittees (McGreevy,Steadman & Callahan 1991; Steadman et al., 1993, Chapter 4).

Changing Mental Health Professionals' Expert Testimony

In 1984, as part of the federal Insanity Defense Reform Act, the Federal Rulesof Evidence were amended to include new Evidence Rule 704(B), which proscribed"ultimate issue" expert testimony by psychologists or psychiatrists on the questionof insanity (that is, testimony that explicitly concludes that a criminal defendant isor is not insane). In a mock jury study, Fulero and Finkel (1991) explicitly manipu-lated the level of testimony given by the expert, and found no effect for ultimateissue testimony on the number of NGRI verdicts.

Changing the Burden of Persuasion and/or the Standard of Proof

In 1982, at the time of John Hinckley's trial for shooting President Reaganand the subsequent NGRI verdict, the federal courts and most state courts requiredthe state to bear the burden of persuasion in insanity cases, with the standard ofproof being "beyond a reasonable doubt."11 In the ensuing 8 years, however, 17states made changes in their requirements regarding burden and standard of proof,so that now the federal courts and virtually all of the state courts place the burdenon the defendant to prove by clear and convincing evidence or a preponderanceof the evidence that he or she was insane at the time of the offense.12

Simon and Aaronson (1988) conducted a survey of opinions about who shouldrightly bear the burden of persuasion in insanity cases. Perhaps not surprisingly,public defenders and private attorneys believed that it should be borne by the State,while prosecutors and judges said it should be the defense. Mental health directorsand forensic mental health professionals also said the defense should bear theburden.

Ogloff (1991), in his comprehensive analogue study, found that mock jurorsdid not assign significantly different verdicts given different burdens and standardsof proof. In a naturalistic study in Hawaii, Pasewark, Parnell, and Rock (1994)found that shifting the burden of persuasion from the prosecution to the defendant

11Other legal standards of proof are less restrictive and include "clear and convincing evidence" and"preponderance of the evidence," which is the least restrictive.

12See Leland v. Oregon (1952). Seeing the insanity defense as an affirmative defense has upheld therights of the states to place the burden of persuasion on the defendant. No state currently requiresthe defendant to prove his or her sanity beyond a reasonable doubt (BYRD), although, according toLeland, this apparently would be constitutional under the Fourteenth Amendment. In jurisdictionswhere the burden of proof rests with the state, the prosecution is still required to prove the defendant'ssanity BYRD.


did not reduce the frequency or success rate of the insanity plea. However, Steadmanet al. (1993, Chapter 5) conducted a similar study in Georgia and New York, whichshifted the burden of persuasion to the defendant and the standard of proof to"preponderance of the evidence." Both states showed a significant decrease in therate of insanity pleas. There was no change in the success rate in Georgia and anincrease in the success rate in New York. This latter finding was explained by thefact that more of those who pled and were acquitted as NGRI under the newprovisions had a major mental illness. They also concluded that, after the reform,there were fewer "questionable cases" pleading insanity, leading to the overallreduction in plea rates.

MORE DRASTIC PROPOSALS:THE "GUILTY BUT MENTALLY ILL" PLEA

Michigan enacted the first guilty but mentally ill (GBMI) provision in 1975.Since that time, approximately 12 other states have adopted similar provisions.13

By the mid-1980s the momentum for adopting GBMI provisions had stalled. Still,in 1985, Weiner predicted that "it is likely to be revived in those states where acrime occurs which enrages the public when the defendant raises and/or succeedswith the insanity defense" (Weiner, 1985, p. 714). This prediction appears to havecome to pass.

Despite its initial popularity, the GBMI verdict has sparked considerable debateand criticism. The original intent of GBMI proponents generally was to reduce thenumber of insanity acquittals and to assure treatment for such individuals withina correctional setting (Robey, 1978). However, research suggests that in manyinstances these objectives have not been achieved. In addition, the GBMI verdicthas been severely criticized on both legal and conceptual grounds. Over time, thosewho have studied it, including the American Bar Association's Criminal JusticeMental Health Standards, the American Psychiatric Association's Statement on theInsanity Defense, the National Mental Health Association's Commission on theInsanity Defense, the American Psychological Association, and the National Alli-ance for the Mentally Ill, have all opposed or recommended against the adoptionof GBMI. This section defines GBMI, reviews research on the impact of GBMI inaccomplishing its stated objectives, and outlines some of the legal and concep-tual criticisms.

Defining GBMI

Distinguishing between the concepts of not guilty by reason of insanity (NGRI)and GBMI can be difficult. In brief, NGRI is an affirmative defense to a crime.

13Alaska (October 1, 1982), Delaware (July 2, 1982), Georgia (July 1, 1982), Illinois (September 17,1981), Indiana (September 1, 1980), Kentucky (March 26, 1982), Michigan (August 6, 1975), Nevada(October 1, 1995), New Mexico (May 19, 1982), Pennsylvania (December 15, 1982), South Carolina(May 16,1984), South Dakota (March 19,1983), Utah (March 31,1983-guilty and mentally ill). Notethat all states except Utah and Nevada added GBMI to the existing insanity defense, rather thanreplacing it.


That is, if a criminal defendant successfully argues that he or she meets the insanitydefense standard, he or she is determined to be "not guilty" (or "not responsible")in the eyes of the law and is then subject to civil proceedings for their confinement,but not to criminal incarceration or punishment (see above). In contrast, GBMI isnot a defense, but is rather a verdict that implies that one is "guilty" or criminallyculpable, and is subject to criminal sanctions including incarceration and possiblyeven death (Harris v. State, 1986; People v. Crews, 1988). The addition of the term"but mentally ill" only denotes a finding that the defendant had a mental disorderat the time of the offense and/or sentencing, but it does not lessen his or her legalguilt or criminal culpability. All states except Utah and Nevada with GBMI haveadded it to their existing insanity defense as a fourth option, rather than using itto replace the insanity defense.

The definitions and provisions for GBMI do vary across different jurisdictions(Keilitz, Farthing-Capowich, McGraw, & Adams, 1984; Perlin, 1993). In most states,a verdict of GBMI would be indicated if it is proven beyond a reasonable doubtthat the defendant (a) committed the act and (b) was aware of the nature, quality,and wrongfulness of the act, but (c) had a mental disorder which substantiallyimpaired his or her ability to conform his or her conduct to the requirements ofthe law.14 If found GBMI, the defendant may be subject to any appropriate sentence,including the death penalty (Harris v. State, 1986; People v. Crews, 1988).

Impact Research on GBMI

Does GBMI Reduce Insanity Acquittals?

The current literature does not show a clear trend for reductions in the rateof insanity acquittals following the adoption of GBMI.15 In general, data from statesin which outcomes have been studied (Michigan, South Carolina, Georgia, andIllinois) suggest that the implementation of GBMI did not significantly reduce theoverall rate of insanity acquittals. In fact, in Michigan, following enactment of aGBMI statute, the number of NGRI findings actually increased. The exceptions inthe existing research have come from studies in Pennsylvania and Georgia, althoughin light of other preexisting trends and cooccurring changes in the law, the specificeffect of GBMI in these states is difficult to ascertain. Because these studies haddiscrepant findings, they deserve some additional explanation.

Pennsylvania did report a reduction in NGRI acquittals after GBMI. However,there were an unusually large number of NGRI acquittals in the year precedingthe implementation of GBMI, and the change also happened at the same time thatthe burden of proof in insanity cases was shifted from the state to the defendant.Similarly, Georgia showed a decline in NGRI success rates for certain kinds ofoffenses, but there was no change in the overall success rate. Callahan, McGreevy,

14Note that persons found to meet this definition of GBMI would presumably be found NGRI in statesthat have adopted the American Law Institute standard, because they would meet the "volitional"prong of the test.

15These data come from states that have retained the insanity defense and added GBMI, rather thanthose that have eliminated the insanity defense.


Ciricone, and Steadman (1992) also reported a decrease in the acquittal rate inGeorgia for certain types of offenses in the year following implementation of GBMI.Their data show a slight but statistically significant downward trend between mid-1982 and 1983. However, it appears that the offenses that showed the greatest declineshowed another increase and upward trend in the following interval. Furthermore,subsequent analyses from these same data reported "no statistically significanteffect associated with the introduction of the GBMI verdict" (Steadman et al.,1993, p. 108). In addition, these subsequent analyses suggested that the decline inNGRI acquittal rates occurred before the GBMI reform and that the observeddecline was also affected by a non-GBMI-related major policy shift stemming froma court case which altered judicial control over the commitment of NGRI acquittees.Thus, it is difficult to separate the effects of these reforms from any independenteffects of GBMI.

Does GBMI Increase Access to Treatment?

It has been demonstrated in several states that a designation of guilty butmentally ill generally does not ensure opportunities for treatment beyond thoseordinarily provided to other offenders, and typically adds nothing to existing provi-sions for the hospitalization of prisoners requiring inpatient care. Thus, for example,a Georgia study found that there were 150 defendants designated as GBMI, only3 of whom were being treated in hospitals. Pennsylvania reported a higher rate oftreatment with just over one-fourth (27.5%) of GBMI inmates never receivinginpatient psychiatric treatment,16 but in Illinois, of the first 44 defendants foundGBMI, none received any hospital treatment (Steadman et al., 1993). Research hasshown, however, that prosecutors and defense attorneys both overestimate thelikelihood that GBMI inmates will receive treatment.17 Thus, the GBMI verdictmay create "false treatment expectations" which would be misleading to defendants,juries, judges and the general public.

Legal and Conceptual Criticisms of GBMI

No Enhanced Public Protection

Contrary to the intent of some of its proponents, it appears that abolition ofthe insanity defense and implementation of GBMI would probably not enhancepublic protection. Once GBMI inmates serve the minimum time necessary forparole, their eligibility for release is dependent on their perceived level of dangerous-ness, the same factor that determines the release of NGRI acquittees. And, as notedabove, defendants who are acquitted as NGRI are often confined as long as orsometimes longer than defendants who are convicted on equivalent charges. More-over, in absolute terms, GBMI displaces very few insanity acquittees and it is evenunclear as to whether the few whom it does replace are the ones who would reoffend.

16Pennsylvania'a treatment rates may be somewhat higher because (1) they require a presentencinghearing on the issue of whether inpatient hospitalization is required and (2) their GBMI populationis largely comprised of persons with severe mental disabilities.

17See McGraw, Farthing-Capowich, and Keilitz (1985) and Finkel (1991). Mock jurors selected the GBMIverdict because they believed that the defendant would have better access to mental health treatment.


Jury Confusion

There are several bases for concerns about jury or fact-finder confusion inGBMI cases. The concept and criteria for the insanity defense alone can be difficultto understand. As noted above, research tends to show that jurors comprehendonly about 30% of jury instructions on the insanity defense (maybe up to 50% underideal circumstances with careful wording) (Elwork et al, 1987). The addition ofGBMI further complicates the issue, making discrimination between verdicts evenmore difficult and potentially confusing. Indeed, "mental illness" is a componentof both verdicts, and some have suggested that the phrase "but mentally ill" connotesa type of diminished capacity that is not truly part of the verdict. It has also beenargued that the addition of GBMI can lead to improper verdicts by allowing factfinders an "easy way out" so that they will not grapple with the central issue ofculpability and by its being applied to people who actually meet the insanity defensecriteria to insure that they are confined (Slobogin, 1985).

Constitutional Concerns

Constitutional challenges to and concerns about GBMI statutes have arisen ina number of jurisdictions. McGraw et al. (1985) have identified several bases forchallenge. Equal-protection challenges have claimed that GBMI statutes create"irrational classifications" which discriminate against people found GBMI. Dueprocess challenges relate to assertions of a right to a pretrial hearing on the issueof defendant's present mental condition, to allegedly "broad and vague" definitionsof mental illness and insanity, and to whether or not a "strict scrutiny" analysisshould be applied to disputes and claims about GBMI. It has also been alleged thatGBMI statutes violate Eighth Amendment protections against cruel and unusualpunishment by not providing appropriate treatment to people with this specialdesignation of mental illness. Despite these criticisms, GBMI has so far withstoodconstitutional challenge (Perlin, 1993; People v. Sorna, 1979).

ABOLITION OF THE INSANITY DEFENSE

Five states have eliminated the affirmative defense of NGRI: Montana (1979),Idaho (1982), Utah (1983), Nevada (1995), and Kansas (1996). Even in these states,however, mental disorder can still be introduced into evidence, but it is only admissi-ble to negate or disprove the requisite intent or mens rea element of the offensecharged. The wording of Utah's statute is illustrative: "It is a defense to a prosecutionunder any statute or ordinance that the defendant, as a result of mental illness,lacked the mental state required as an element of the offense charged. Mentalillness is not otherwise a defense" (Utah, 1998).

This minimal provision for the admissibility of evidence on mental illness isapparently constitutionally required. In the early 1900s, three states [Louisiana(State v. Lange, 1929), Mississippi (Sinclair v. State, 1931), and Washington (Statev. Strasbury, 1910)] also sought to abolish the defense of mental nonresponsibility,but the statutes were found to be unconstitutional, presumably because they did


not allow introduction of any evidence concerning one's mental disorder, not evento negate mem rea.

This mens rea approach, however, is different from the NGRI approach. Unlikethe insanity defense, the mens rea exception is not an affirmative defense and it isnot concerned with whether or not an individual knew what he or she was doingwas wrong. The mens rea approach is only concerned with whether or not anindividual acted with the simple mental state that the law defines as an element ofthe charged crime, such as intent to engage in a particular kind of action, intent tocause a particular result, or knowledge of a particular kind of circumstance.

To illustrate this distinction, consider the following example: Suppose a manwith schizophrenia has a delusional belief that a group of men in red hats arestalking him in order to kill him so that they can take over the planet. Along thestreet, he encounters a man in a red hat walking quickly toward him. Fearing hisown death, he shoots the red-hatted man to death. Under the mens rea approach,the individual's fear of immediate harm from the red-hatted man and his beliefthat he was acting to defend himself are not relevant to determining his culpability.Because he intended to kill the man, regardless of his reason, he would be foundguilty of murder and subject to criminal sanctions. Under the NGRI approach,however, the judge or jury would determine whether the man's delusions causedhim not to know his actions were wrong. If they determined that he did not knowthat it was wrong, he would be found NGRI and involuntarily committed to a statefacility to receive treatment rather than sentenced to prison for his actions.

Legal and Policy Issues

A question which is still unsettled in the law, however, is whether states areconstitutionally required to provide some form of affirmative insanity defense. Thusfar, the statutes in Idaho (State v. Searcy, 1990), Montana (State v. Korrell, 1984;State v. Byers, 1993; State v. Cowan, 1993/1994), and Utah (State v. Herrera, 1995)have all survived constitutional challenge before their respective state supremecourts. The Utah Supreme Court attempted to avoid the issue of whether or notit was constitutional to "abolish" the insanity defense by claiming that their mensrea exception was simply an alternate approach to dealing with "the insane crimi-nal defendant."

The U.S. Supreme Court has never directly addressed the issue of whetherany particular insanity test is minimally required by the Constitution, or evenwhether an affirmative defense of insanity is required at all. In Leland v. Oregon(1952), the U.S. Supreme Court declined to specify that any particular insanity testwas required under federal due process. Some have interpreted that to mean thatstates may be free to choose among the various substantive tests for insanity, butthat they may not altogether eliminate this affirmative defense. Others, however,point to dicta in previous cases which seem to suggest that at least some of thecurrent justices on the U.S. Supreme Court would not find the insanity defense tobe constitutionally required.

For example, in Foucha v. Louisiana (1992), Justice Kennedy in his dissentdeclared that "States are free to recognize and define the insanity defense as they


see fit" (p. 96), and Justice O'Connor indicated that Foucha did not restrict "States'freedom to determine whether and to what extent mental illness should excusecriminal behavior. The Court does not indicate that States must make the insanitydefense available" (pp. 88-89). Similarly, Justice Rehnquist in his dissent in Akev. Oklahoma (1985) opined that "it is highly doubtful that due process requires astate to make available an insanity defense to a criminal defendant" (p. 91). Ofcourse, such dicta carry no binding authority or precedential weight.

In 1994, the U.S. Supreme Court had an opportunity to rule on the constitution-ality of these "abolition statutes" in Montana v. Cowan (1993/1994). However, theCourt declined to review the case (i.e., it denied certiorari). Although some mediacommentators and policy makers have apparently interpreted this as "opening thedoor" for states to eliminate their insanity defenses, it is a well-established principleof constitutional law that a denial of certiorari has no legal authority or precedentialvalue, nor is it necessarily an index of how the Court would decide the issue if itchooses to review it at a later date (Perlin, 1995). Thus, this nonaction provides noadditional insight concerning the Court's view of the constitutionality of "abolitionstatues." Nevertheless, the case probably served as part of the impetus for thesubsequent abolition statutes in Nevada and Kansas.

From a policy perspective, one of the key issues facing those states thatabolish the insanity defense is the question of what to do with "insane offenders."This might include two groups: (a) those who were or are mentally ill and inneed of treatment, but who are not found to meet the narrow mens rea exceptionand (b) those who are found not guilty because their mental illness negatedmens rea. The convicted mentally ill offender is often either treated/managedin the correctional facility or temporarily transferred to a state psychiatric facilityunder statutory provisions. For the acquitted mentally ill offender, "abolition"states have generally sought to civilly commit such individuals if they aredetermined to be dangerous.

Over time, states have approached this issue with increasing specificity andsophistication. Kansas, the most recent state to abolish its insanity defense, has adetailed set of statutory procedures for handling defenses based on "lack of mentalstate." These include pretrial notification and dispositional provisions that closelyparallel those which existed for NGRI acquittees. For example, if a defendant isfound not guilty solely because he or she had a mental disease or defect whichrendered him or her incapable of possessing the required criminal intent, the defen-dent is "committed to the state security hospital for safekeeping and treatment"(Kansas, 1998, §22-3428. (1)(a)). Within 90 days of this commitment, the chiefmedical officer of the facility will send a written evaluation report to the court,after which there must be a hearing (within 30 days) "to determine whether or notthe defendant is currently a mentally ill person" (§22-3428. (1)(b)). If the courtfinds by clear and convincing evidence that the defendant is not a mentally illperson, "the court shall dismiss the criminal proceedings and discharge the defen-dant, otherwise the court may commit the defendant to the state security hospitalfor treatment or may place the defendant on conditional release" (§22-3428. (1)(d)).The constitutionality of these provisions, as distinguished from ordinary civil com-mitment proceedings, has not yet been before the courts.


Empirical Issues with Regard to Abolition

Because abolishing the insanity defense has been done in very few states, thereis little empirical information available. Existing research, however, tends to showthat abolishing the insanity defense does not reduce the overall volume or rate ofmental nonresponsibility pleas, and that essentially the same people continue tobe handled by the forensic mental health system, not the correctional system.For example, in Utah (Heinbecker, 1986), there were as many mens rea mentalnonresponsibility acquittals (seven) in the 2 years following abolition of the defenseas there had been NGRI acquittals in the 9 years prior with the affirmative defense.In reviewing these cases, the author concluded that only one of the mens reaacquittals even appropriately met the narrow criteria, whlie the others were reachedthrough stipulation and negotiation.

The state with the longest history of operating under the mens rea model isMontana. Consequently, there is better longitudinal data from that state than fromany other. In their study on the effect of abolishing the insanity defense in Montana,Steadman et al. (1993) found that although there was a decline in the success rateof insanity pleas, there was no change in the volume or rate of mental nonresponsibil-ity pleas overall. Despite the apparent decline in success, the same people wereessentially being handled in the forensic mental health (as opposed to the correc-tional) system. After abolition, the number of people found incompetent to standtrial (IST) went up in approximately the same proportion that "mental nonresponsi-bility" acquittals went down. It appeared that these "new" ISTs were people whowould have been found not guilty by reason of insanity under the prior law. How-ever, under the new law more of them had their charges dismissed or deferred. Inaddition, after the reform, more defendants were also being released rather thanbeing hospitalized. Thus, it is at least questonable whether or not abolition of theinsanity defense results in enhancing public safety or in confining for longer periodsof time the class of offenders who meet the insanity defense test.

Unintended Policy Effects of Abolition

As a practical matter, the most serious policy implications of the abolitionistposition are ones likely to have been unintended by those advocating it. First, itwould appear that some individuals who are insane under current insanity lawsmight otherwise have been acquitted. Second, the "diminished capacity" defensewhich the public finds to distasteful would preforce be restored to criminal law asa result of abolition.

Formerly "Insane" Defendants Now To Be Acquitted

Without an insanity defense, an individual found to be so mentally ill that heor she could not form the specific intent required for the crime would have to beacquitted. For example, Kadish (1968) states:

A total inability to know the nature and quality of the act quite plainly precludes convictinga defendant of any crime whose definition requires that he have that knowledge. And anycrime which requires intent, or knowledge, or recklessness, surely posits that knowing. If


it were not for the special, preemptive defense of legal insanity, therefore, the defendantwould have a complete defense on the merits to any such crime, namely, the lack of mens tea.

Other legal scholars (Monahan, 1973; Bonnie, 1983) have acknowledged thesame problem with abolishing the insanity defense. We will await with interest thepublic reaction (and the resulting legislative response) to the first case in which adefendant who is clearly insane is actually acquitted.

The Return of the "Diminished Capacity" Defense

In the "diminished capacity" defense, a defendant introduces testimony abouthis or her mental state in order to show that he or she lacked the mental capacityto form the specific mental state required for a particular crime or degree of crime.For example, a defendant charged with "knowingly" attempting to harm someonemight be charged with felonious assault, a second-degree felony. In states that haveabolished the diminished capacity defense, such as Ohio (see State v. Wilcox, 1982)that defendant cannot now put on expert testimony on mental state, unrelated toan insanity defense, in order to show that he could only have formed the specificintent of "recklessness," which would reduce the charge to assault, a first-degreemisdemeanor. In California, this became known as the "Twinkie defense" afterDan White invoked it successfully in the Harvey Milk murder case in San Francisco(People v. White, 1981). Mr. White could not have argued insanity, as his actions(concealing the weapon, sneaking in, etc.) clearly showed that he understood theirwrongfulness. Instead, he argued that his consumption of junk food prior to theshooting had so affected him mentally that he could not form the intent to murder.He was eventually convicted only of manslaughter, which requires a lesser intent,to a chorus of intense outrage by the public.

If the abolitionists are successful in limiting evidence of mental state only tothe question of specific intent, they will inadvertently restore the diminished capacitydefense. It is simply not possible to have a mens rea element and then not allowthe defendant to introduce evidence on it. This will open the floodgates to the useof mental state evidence in many more cases than the ones seen now—with theburden of proof on the State beyond a reasonable doubt, rather than on the defen-dant by a preponderance of the evidence, as it is now with the insanity defense. Inthe words of Kadish (1968, p. 282), "you can change the name of the game, butyou cannot avoid playing it so long as mens rea is required." Abolition, then, islikely to have unintended effects that not only fail to solve perceived existingproblems, but actually create worse problems. It is therefore prototypical of policychanges that are influenced by a few cases, by myths and misconceptions, and bypolitical considerations instead of logic, rationality, or empirical data. In a sense,abolition of the insanity defense would not only throw out the baby with the bath-water, but would dismantle the bathtub.

AN EFFECTIVE SOLUTION: CHANGING PROCEDURES FORRELEASE OF NGRI ACQUITTEES

As noted above, although there is a popular perception that insanity acquitteesoften "go free," defendants who are acquitted as NGRI are often confined as long


as or sometimes longer than defendants who are convicted on equivalent charges.18

Thus, when the insanity defense is retained, this class of offenders (persons currentlyfound NGRI) will likely be confined at least as long as or longer than if there wereno insanity defense (if they were to be found guilty).

One additional way to enhance public safety is to modify the proceduresgoverning the release and postrelease supervision of NGRI acquittees. Conditionalrelease (CR) programs have been used successfully in Oregon, Connecticut, Mary-land, Illinois, Ohio, and Virginia to provide intensive monitoring of insanity ac-quittees (Miller, 1994).

These programs operate much like specialized outpatient commitment or "mentalhealth probation" programs. If an individual becomes eligible for release, the caseis carefully reviewed, often by a multidisciplinary committee or psychiatric securityreview board, and any decision to release is usually made contingent on compliancewith a set of individualized conditions designed to reduce an individual's risk (e.g.,comply with treatment, not possess or use alcohol or drugs, etc.). The individualis then monitored in the community, and any failure to comply with the conditionsmay lead to the individual's return to the 24-hr facility. Often these provisions areeven more stringent and more individually tailored than those used in probation,and because people on CR also tend to be more intensively monitored, this appearsto be an extremely promising mechanism to reduce the potential for violence andcriminal recidivism among mentally ill offenders.

In some jurisdictions, conditional release programs have provided increasedand earlier detection of individuals who need rehospitalization when compared toNGRI acquittees whose release is not part of a conditional release program. More-over, they have been shown to reduce recidivism. For example, a study in Californiacompared a group of NGRI acquittees who were unconditionally released aftertheir commitment time expired to a group who were conditionally released undera CR program. During the follow-up period, 27% of those who were unconditionallyreleased were rearrested compared to only 5% of the CR group. Much of thedifference appeared to be attributable to increased surveillance in the communityleading to rehospitalization before the problem behaviors occurred (Weidrand-ers, 1992).

SUMMARY AND CONCLUSIONS

Advocates of the various procedural changes to the insanity defense, most ofwhich were proposed as an indirect way of limiting the use of the insanity defense(Finkel, 1989; Fulero & Finkel, 1991), have generally been frustrated by the lackof substantive effect that those changes were supposed to have had. Changing thesubstantive test or definition of insanity to what would appear to be a more restrictiveone has little or no effect on the number of insanity acquittals, though the resultsare somewhat mixed. Changing the burden of proof and the standard of proof

18Rodriguez, J., LeWinn, L., & Perlin, M., supra note 15, at 403-404. (NGRI acquittees spend almosttwice as long in confinement as people convicted of similar charges.)


required has had virtually no effect. Restricting mental health expert testimonyappears to have had no effect.

Later, the GBMI option appeared on its face to be an attractive alternativefor those interested in limiting the insanity defense. However, GBMI does notappear to increase effective treatment options or enhance public safety. In addition,the empirical research reviewed here does not support the position that NGRIacquittals will decrease with the introduction of the GBMI option. Indeed, it appearsthat those found GBMI come not from the group of defendants that would formerlyhave been found NGRI, but instead from the population that would formerly havebeen found guilty. And on a policy or conceptual level, it could be argued that thenotion of "guilty but mentally ill" does nothing more than extend or perpetuate the"excuse" or "blame game" that so many commentators have criticized (Dershowitz,1994) (why not, for example, "guilty but diabetes," or "guilty but abused" as analternative plea?).

Finally, those who have advocated for the most extreme solution-the abolitionof the insanity defense-appear to have little empirical support for their position.As set forth above, the arguments that form the underpinnings of the abolitionistposition-that the insanity defense is overused and often successful, that it is usedmostly in heinous crimes, that successful NGRI acquittees spend little or no timein custody, and that NGRI acquittees are more dangerous than other types ofreleasees-appear to be myths without empirical foundation. In addition, the unin-tended policy implications of the abolition position, apart from the legal questionsraised by abolition, are disturbing.

Overall, then, efforts to "fix" the insanity defense by "tinkering" or by moredrastic means have generally had little effect. This, we would argue, is largelybecause there is no real evidence that it is broken. It is a defense that is rarely raised,and usually unsuccessful. Even when defendants raising insanity are successful, theywill generally spend in confinement as much time as if or more time than if theyhad simply been found guilty.

In addition, the moral integrity of the criminal law would seem to necessitateat least some provision for lessening the culpability of individuals who, as a resultof severe mental illness, do things that they do not know are wrong. Punishingpeople whose conduct is driven by mental disability, rather than wrongful intent,does not serve any legitimate objective of general deterrence.

Certainly, the specific deterrent objective of protecting the public from futureharm by a mentally ill and dangerous person is a legitimate one. However, it isclearly one not best achieved by attempts to tinker with, change, or abolish theinsanity defense. Instead, sound and carefully implemented conditional releaseprograms appear to have the greatest effect on enhancing public protection, whilesimultaneously providing necessary treatment. These programs provide greatersupervision than is generally afforded to persons on probation or parole; further,the conditions of release are rehabilitative in nature and specifically tailored tothe reduction of future problematic behavior that might result from untreatedmental illness.

It has been said that insanity might be defined as doing the same thing overand over and expecting a different result. Perhaps it is time to apply this maxim


to efforts at insanity defense reform. Policy changes that are informed and drivenby empirical evidence rather than anecdotes, myths, and political considerationsare always more likely to be effective. We urge that changes in this area of law bemade in that spirit.

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ACKNOWLEDGMENTS

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