Earlier this month, the U.S. Supreme Court heard argument in Kahler v. Kansas. The case presents the issue whether a state violates the Due Process Clause of the Fourteenth Amendment by abolishing the insanity defense. In an earlier column, I considered the question and presented some arguments in defense of abolition. Here, in keeping with the abolition theme, I will offer a few parallels between two seemingly disparate areas: animal welfare and the insanity defense.
When most people hear the phrase “animal welfare,” they think of the wellbeing of animals. Who could oppose that? No one sane, might be a typical response. But in the debate over how best to protect animals from human violence, there are those who oppose animal welfare measures like California’s 2008 Proposition 2, which required a switch for chickens, pigs, and calves from smaller to larger cages. Why would anyone who cares about animals oppose such measures?
One answer is that each time a law purports to make improvements for animals, the new regime is surprisingly similar to the old. For cage-free eggs, to take one example, many of us imagine an old-fashioned barn with happy chickens walking around, giving themselves dust baths, and enjoying the sun. The reality, however, is typically that the owner of the hens effectively replaces battery cages with one huge cage, a barn that is filthy, thick with ammonia fumes (from chicken urine), lined with concrete, and host to brutal fights and cannibalism because the number of birds is too great to sustain a workable “pecking order.” Perhaps it is still a bit better than the caged setup, but if so, the difference may be marginal.
“So what?” some might ask. If “cage free” does not improve matters very much, it doesn’t make things worse, does it? Opponents of welfare measures say they do make things worse, though not directly. When the law institutes “changes” in the housing of animals bred for slaughter, people tend to have two reactions: a sense of relief that animals are so much better off than they were before, and moral licensing—the feeling that they may now consume the animal product without feeling guilty. One can thereby have one’s cake and eat it too by voting for animal welfare legislation. If true, such legislation raises the demand for animal products, a demand that incentivizes an increase in supply, and more animals ultimately suffer horribly and die in terror and pain. Because farmed animals already take up so much of the country’s surface area, the resulting crowding could more than make up for any space the animals gained due to the law.
Many, even most, animal advocates disagree with the scenario I describe above. They say that animal welfare measures make life at least a little more bearable for animals, adding that people involved in promoting and supporting welfare legislation are likely to change their consumption habits as a result. Once you have fought for animals, the failure to do right by those animals generates cognitive dissonance that people relieve by reducing their cruelty footprint (their consumption of animal products) more broadly. Supporters of welfare measures also make arguments about the costs of complying with welfare requirements and the resulting rise in the price of animal products, another incentive for consumers to change aisles at the market and purchase more food in the vegan category. I cannot rule out this possibility, but its promoters have not empirically demonstrated it either, so for now, it remains an empirically contested viewpoint, like its opposite. My guess as to why many people support welfare measures is that changing the law feels like doing something, a feeling that could be illusory. On the side of opponents as well is the fact that visits to so-called happy farms routinely find a house of horrors as bad as, worse than, or only marginally better than the conventional animal operations.
If opponents are right about animal welfare measures, then how is that related to the insanity defense? The resemblance begins with an understanding of what happens when a criminal defendant is found not guilty by reason of insanity. Because “not guilty” is technically an acquittal, you might imagine that the defendant goes free. Isn’t he innocent before the law and thus eligible to return to his life from before whatever crime he was charged with having committed?
No, he is not. The Supreme Court in Jones v. United States held that when a defendant is found not guilty by reason of insanity, the State has the authority to automatically confine him in a psychiatric hospital until he can prove by a preponderance of the evidence that he is entitled to release.
Why is this surprising? If a person commits what would ordinarily be a criminal act but avoids responsibility because he is literally too crazy to be blameworthy, then doesn’t it make sense to presume, as the Court allows us to do, that he is mentally ill and dangerous? Perhaps it makes sense; perhaps it does not. Ordinarily, though, when we wish to confine a person who is guilty of no crime, we must affirmatively prove that the person is subject to confinement. Under Addington v. Texas, the standard is proof by clear and convincing evidence. This means that in virtue of an acquittal by reason of insanity, the government may lock up someone innocent who would otherwise be entitled to freedom and may do so without demonstrating anything other than the acquittal. In this sense, an acquittal by reason of insanity is a whole lot like a conviction. In both cases, the government may lock you up because of your criminal conduct. And in both cases, the new default is your confinement.
Criminal and psychiatric confinement are not identical, however, are they? No. If you are convicted of a crime that carries a maximum sentence of five years’ incarceration, you will be free to leave in five years (assuming you avoid reoffending while in prison). If, however, you carry out the exact same criminal act but are instead found not guilty by reason of insanity, you could spend the rest of your life in the equivalent of a prison cell. You might become upset after five years have passed (because you were acquitted, and you have already served the sentence assigned to people who are convicted). The amount of time you spend behind bars after a not-guilty-by-reason-of-insanity (NGRI) verdict, however, has nothing to do with the seriousness of the crime you are innocent of committing; it is all about whether you continue to be dangerous or not. And most reputable psychiatrists and psychologists acknowledge that predicting future dangerousness is not much of a science and is extremely likely to yield false positives when a person has already (not) committed a crime.
During oral argument at the Supreme Court, however, several of the justices (guessing which ones should be substantially easier than predicting future dangerousness) seemed to think that the insanity defense is helpful to defendants. That assumption was the premise of their concern about taking the defense away. The lawyer opposing abolition, while agreeing that NGRI acquittees should be confined in a hospital (where they would of course get help, a word that rests uneasily with images of muscular attendants offering Thorazine injections that make “patients” too drowsy and out-of-it to cause much more trouble than a boiled carrot). So what is so helpful about the insanity defense? The lawyer defending insanity argued that the acquittee does not suffer the stigma of a criminal who is responsible for bad behavior.
In theory, this is true. An acquittal by reason of insanity relieves the defendant of moral blame. The problem with the theory, however, is that people are extremely skeptical of the insanity defense, notwithstanding its very narrow scope, and therefore assume that those who plead insanity are trying to find a loophole in the system. The skepticism extends to a finding of NGRI as well so that people continue to believe that the acquittee is getting away with his crime. As a result, the public appears to attach the same level of criminal stigma to the NGRI acquittee as it does to convicted offenders and perhaps even greater stigma because of the culpable attempt to evade responsibility. The impact of NGRI is thus much the same as that of a conviction, much as the one big cage and the many small cages are the same.
Just as most right-minded people believe in the idea of animal welfare, most right-minded people also think that we should have an insanity defense. This is presumably why virtually every state in the country has some version of it. It just seems cruel to lock up people who are so mad that they either could not have acted otherwise or did not understand the wrongfulness of their behavior. So we create the insanity defense, and everyone pats herself on the back for doing right by the mentally ill of this country. The problem, as in the parallel of animal welfare, is that the insanity defense does virtually nothing for criminal defendants. They can end up spending as much or more time in confinement, and they endure at least as much of a blameworthiness stigma as do ordinary criminals. The one important exception to this is the death penalty. There is no execution of the criminally insane. That too, however, is not a logical necessity: one could imagine finding that some people are so dangerous that we cannot assure others’ safety while they remain alive. Of course, psychiatrists and psychologists are going to be terrible at predicting which people they are, but that fact has never put the brakes on the prediction business. It is also true that the death penalty is in decline, very few people charged with a crime are even eligible for an insanity defense, and very few of those individuals have committed a death-eligible crime. So the odds that the insanity defense saves a defendant’s life are vanishingly small (with the possible exception of James Kahler, the petitioner in the case before the Supreme Court).
If we want to show compassion to the insane, we will provide comfortable and therapeutic environments for them when they carry out a criminal act for which we feel they are not blameworthy. And we will cut back on their eligibility for long-term confinement that an actual convict would not face. I am not hopeful that any of this will happen, given current attitudes, but it almost certainly will not happen if we place our faith in the current crop of insanity defenses. The same, I think, is true for animals. If we truly feel compassion for them, we will stop consuming their bodies and reproductive secretions. Happy animal products, like the insanity defense, is, I believe, a mirage that enables our own sloth. If we are to change conditions for the better, we cannot continue to stare blankly at a hallucination of justice.