Hi, I am Elle, and this is Quid Pro Quo, your friendly neighborhood forensics-like podcast, helping you make sense out of all the horribly misused psych jargon in your favorite gritty procedural crime drama. The Quid Pro Quo podcast deals with crime, psychology, and related themes. Listener discretion is advised. The episode I originally planned for today needed some extra time to bake, so instead, you finally get the topic everyone asks about.
The definition of insanity is doing the same thing over and over again, but expecting different results. Hold on, that's totally wrong. Also, no one can find any reference to Albert Einstein actually saying that. Near as anyone can tell, that quote first showed up in an alcoholics anonymous support text in the early 1980s.
And now you know, and knowing is half the battle. Episode 6 is the Insanity episode. Well, the first one anyway. It's kind of a big deal.
I want you to harken back to the long ago land of Quid Pro Quo episode 3, where I discussed fitness to stand trial, and my friend, who is at Gala Quiro on Twitter, asked, I'm really curious about the insanity defense trope. What qualifies as mentally unfit to stand trial? Just about any violent offender is diagnosable with something, I'd think. While the Fit to Be Tried episode, I feel did a pretty good job of addressing the middle bit.
At the time, I purposefully shelved the beginning and end bits for later consideration. Most societies with a legal system based on the idea of fairness have some flavor of sanity laws. Even ancient societies recognize that while most people have the ability to make active choices to follow or disregard the law, some people have issues which temporarily or permanently deprive them from the ability to make these rational and voluntary choices. Societies interested in justice, which admittedly, not all societies are, recognize it is not just to punish people for things they did not choose to do, and they recognize that this punishment is not likely to deter future crimes.
So the primary philosophical question then becomes, under what circumstance can we consider someone to have lost volitional control of their own actions? At its most basic definition, sanity means having sufficient mental faculties at the time of an action to bear legal responsibility for that action. Okay, pretty straightforward as a philosophical concept, but in application it gets really messy. The definition of insanity is a strictly legal one, and in the US it varies from state to state.
This determination is also very specific to the particular act under current legal consideration. The simple fact that someone has been diagnosed with something may inform, but is never the sole standard for sanity. Well, not for very long anyway. Fear of a defendant faking to get out of punishment is extremely high.
Remember that bit, it's going to come up a lot. Most courts are now careful to avoid blanket rules which qualify or disqualify a defendant due to a specific condition. Laws like that tend to withstand just about one half of a test case before someone realizes it's a terrible idea and scrambles to change the statutes. The role of the forensics-like expert or any other expert called to testify is not to declare the defendant sane or insane.
They are there to present evidence relating to whether the defendant's actions, at the time of the offense, are consistent with a state which might have affected their capability to their legal responsibility for that action. In 1984, Congress codified this under the Federal Rules of Evidence. No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereto. Such ultimate issues are for the trier of fact alone.
To take it to an utterly ridiculous level for the purpose of example, because I like doing that, Bob is in a hospital under a medically induced coma and Jenna commits a murder in his hospital room which happens to directly benefit Bob. Bob has since recovered from his own and looks the picture of health and perception but has never reported the murder. Let's say the prosecutor either doesn't understand the limitations of comas or believes that Bob wasn't in one at that exact time. So Bob is arrested as Jenna's accomplice.
Bob's lawyer argues that there is compelling evidence that the comatose condition was unbroken during the time of the murder and that as a result of Bob's unresponsive mental status, he could not be expected to have known what was happening and therefore would not be considered to have a legal responsibility to report the crime. Bob's lawyer would bring in witnesses and medical experts who would testify that Bob was in fact in an induced coma at the time and present any necessary medication and treatment records to back this. They would also testify as to what things a person in a coma could be expected to be able to perceive and then act upon. They could say something like, in our opinion, a state similar to the one we recorded in Bob would not have allowed the level of perception necessary to witness a particular act or remember it to the extent a person could report it later.
But they could not say Bob did not perceive the murder. It would then be up to the jury to decide if they believed the witnesses and feel that the state Bob was in at the time of the murder is in fact consistent with one that would keep him from perceiving the murder much less reporting that it had taken place. Bob is in a pretty unusual position but insanity defenses have been successfully argued for medical conditions which are known to render a person insensate such as epilepsy and sleepwalking. Every state sets its own statutes on the determination of sanity but in general they are pretty evenly split between two standards with the exception of Idaho, Kansas, Montana and Utah who do not have any provisions whatsoever for the insanity defense.
With the exception of Kansas, these states have a provision for guilty but insane which doesn't amount to much difference from a normal guilty verdict. Much like juvenile detention, the idea is that their later treatment would differ from someone with a normal guilty conviction but the practice doesn't hold up. Some jurisdictions will accept a diminished capacity defense which in effect argues that the person did the action but should not be held as responsible as someone in full control of their faculties. Diminished capacity differs from insanity in that the person is still considered guilty at the end of it all but typically receives a lighter sentence.
This defense fell into disfavor after the negative publicity surrounding the case of Dan White who assassinated San Francisco Mayor George Moscone and supervisor Harvey Milk in 1978. The more strict standard is commonly known as the McNaughton rule or right wrong test. A defendant may be found not guilty by reason of insanity if at the time of committing the act he was laboring under such a defective reason from disease of the mind as to not know the nature and quality of the act he was doing was wrong or if he did know it that he did not know what he was doing was wrong. The test is based on the 1843 British case of Daniel McNaughton, a deranged woodcutter who attempted to assassinate the prime minister but was acquitted.
This acquittal was highly controversial and as a result British legislators made a special effort to codify a rule on sanity which they felt was fair and in the best interest of society. Some states that use the McNaughton rule have modified it to include a provision for a defendant suffering under an irresistible impulse which prevents him from being able to stop himself from committing an act that he knows is wrong. Unsurprisingly the open language of these provisions often lead to the all too familiar outrageous test case and scrambled law reform dance. The remaining jurisdictions use some variation of the standard set out by the American Law Institute or ALI in 1962.
Under the ALI model penal code rule, a defendant is not held criminally responsible if at the time of his conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. When I was in school this was broken down for us as the difference between whether they know under McNaughton they shouldn't be doing what they are doing or if they know and appreciate under ALI that they shouldn't be doing what they are doing. This doesn't sound like a big difference but from a legal standpoint it is a really big difference. Without the irresistible impulse tweak the McNaughton rule is by far the more restrictive of the two.
Any evidence that the person understands the legal consequences of their action means they do not meet the standard. An excellent example of this difference would be the 2002 Andrea Yates trial which came to a guilty verdict during the very time in my degree we discussed these tests. Yates was convicted of murdering her five children under the McNaughton rule in Texas because though she made no attempt to hide her crime afterward all testimony indicated that she timed the murders to avoid interruption by her husband. This was presented as evidence that she knew her actions were legally wrong.
Many felt that had she been tried in a model penal code state she might have had a chance for a successful insanity defense as even if she knew they were wrong her reasoning for the murders was based on severely disordered thought process. She was already suffering under incredibly severe postpartum psychosis at the time and there were multiple circumstances which escalated her danger to both herself and the children in specific. She had an extensive history of mental health problems and threats of self harm which were tied directly to the stress of childbearing and rearing. Yates had recently lost access to her usual anti-psychotic medication and this exacerbated some religiously themed psychotic fantasies which were centered around saving the children's souls by supposedly sparing them from the hardship of life.
In addition there was a staggering series of terrible choices on the part of her husband including a move to smaller quarters farther from family support, heavier involvement in a fundamentalist religious sect, continuing to encourage her to have children in rapid succession even after she expressed that she was overwhelmed by the one she had and then purposefully leaving her alone with the children to quote learn independence even though she had attempted suicide multiple times and there were no concerns about her harming the children. Allowing her soul custody of the children even for short periods was directly against the recommendations of pretty much everyone who had ever come in contact with this couple on a professional or personal basis after the onset of her postpartum psychosis. During the trial he was convinced that she was going to be set free and openly expressed a desire to continue having children with her. The original conviction was overturned due to false testimony on the part of one of the prosecution's witnesses.
She was later retried but acquitted under an insanity defense. The second jury completely rejected the prosecution's original interpretations for actions as avoiding legal repercussions and instead seemed to view them as her attempt to simply avoid being stopped by her husband. She was released from jail but moved to a low security mental hospital where she still remains. A lot of people have this idea that not guilty by recent insanity or NGRI verdicts are extremely common and that huge swaths of hardened criminals are using them to gain the system.
One 1987 study by Robert's Goldman and Fyncham indicated that in mock trial situations though 78% of their subjects believe that severe mental illness suggested impairment in one's capacity to make rational decisions and form criminal intent, 66 still believe that insanity should not be allowed as a complete criminal defense. They cited concerns that it was an easily abusable loophole that allows many criminals to escape judgment. This incredibly common attitude is not even remotely representative of the reality of the use of NGRI. The numbers vary here and there but overall NGRI seems to be offered as a defense in about 1% of felony indictments and are successful in one quarter of this 1% of cases.
Juries are extremely wary when presented with NGRI as defense so in reality using NGRI is pretty much judicial suicide and defense lawyers absolutely know this. Our inherent distrust at the idea someone may be gaining the system means they actually tend to be less successful at trial in places where these pleas are more common. A smart savvy lawyer in a jury trial is not going to think of an insanity defense as a clever loophole because a smart savvy lawyer knows that it is almost guaranteed not to work. According to the State Division of Criminal Justice Services of 5,910 murder cases completed between 2003 and 2013 in New York State, only 7 defendants have been found at trial to be not responsible by reason of mental disease or defect.
In the majority of cases, the use of NGRI is very cut and dry and agreed upon as either a stipulation between both sides or at a bench trial. There is no bombastic disagreement, there are no armies of witnesses, there is no drama, the dramatic contentious jury trial with the armies of expert witnesses are what we think of precisely because they are rare and exciting enough to make the news. Basing your idea of the reality of NGRI on these cases is like assuming that high school football players make millions of dollars a year because the Dallas Cowboys have games on TV. A prosecutor will accept a plea of NGRI in a situation where the facts are crystal clear and the interest of the public is not served by a trial.
If the prosecution's expert feels that the NGRI defense is valid, that becomes part of the submitted evidence and at trial the prosecution must fight the expertise of their own witness. Prosecutors do not make their cases by undercutting their own experts. These are cases with zero ambiguity. These defendants typically have extensive histories of both major psychotic diagnoses and prior findings of incompetency.
Roughly 50% of the defendants who raise the insanity defense and 70% of the acquities have psychotic diagnoses. Remember, these agreements are making up the majority of one quarter of one percent of felonies. This is not exactly a scourge upon our judicial system. So fine.
Even if it's not like a giant law and order marathon of insanity case trials all the time, surely we have to be worried about all of these, literally legally insane people being set free. Sorry, but no. As it turns out, even when the insanity defense is successful, defendants are rarely set free. We have pretty strict rules for when you can force treatment and for when and how long you're allowed to hold someone in custody for the safety of themselves or others.
A successful plea of not guilty by reason of insanity is basically like a civil commitment easy pass. Do not pass go. Do not collect $200. Go directly to something that is in many ways indistinguishable from jail.
Except this time, you have no legally set release date. These defendants are typically sent to secure psychiatric institutions until they are deemed no longer mentally ill or dangerous, which is a whole other kettle of fish. Even after release, the minute they display questionable symptoms, they can be brought right back in with a minimum of oversight. Just quote Dr.
Ewing, author of Insanity, Murder, Manus and the Law. I tell my students, you have to be crazy to plead insanity, and I say that because the consequences are so grave. Most will spend longer in a lockdown psychiatric center than they would have spent in prison had they pled guilty. Today's episode was the very tip of the insanity iceberg.
There is so much more to talk about. If you want to weigh in on the not guilty by reason of insanity plea, or if you have other questions about true crime and forensic psych, seek me out at Quid Pro Quo Cast on Twitter, Facebook, Gmail, at the dot com, and wherever fine internets are sold. I'm currently the most active on Twitter. Quid Pro Quo is available on iTunes and Google Play.
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