Next term, the U.S. Supreme Court will be considering the case of Kahler v. Kansas, presenting the question whether the Constitution prohibits a state’s abolition of the insanity defense. Advocates have made a number of arguments on both sides of this question. In this column, I will offer a defense of abolition.
Some Arguments Pro Insanity Defense
Intuitively, the better position would appear to be that the Constitution mandates the insanity defense. If people are insane, then isn’t it wrong to punish them for what they do in the grip of madness? Just as we would not hold you responsible for a crime if a stronger third party literally forced you to commit the act, the insane person’s conduct is traceable to an alien force that should properly divest the afflicted of blame.
In the famous case of John Hinckley, the defendant attempted to assassinate President Reagan because he believed this would impress his idol, actress Jodie Foster. He went to trial and pleaded insanity. Such a plea generally involves conceding the elements of the crime (such as mental state, act, result) and arguing that one behaved in this fashion due to insanity, as defined by the relevant jurisdiction’s law. The jury found Hinckley not guilty by reason of insanity, and Hinckley was sent to a mental hospital, where he lived for about 35 years before being released. Had he been convicted instead, Hinckley might have suffered punishment for behavior that stemmed from a deranged and sick mind.
The Supreme Court has identified quite a few insanity-related constitutional rights for criminal defendants and convicts. Consider just two examples. Under Ake v. Oklahoma, an indigent defendant who can demonstrate to a judge that his (the defendant’s) insanity will be a significant factor at trial is entitled to have the state make available a psychiatrist to assist the defense. And under Ford v. Wainwright, if a person sentenced to death becomes incompetent to be executed—arguably a form of extreme insanity—then he has an Eighth Amendment right not to be put to death in that condition.
More broadly, a person’s intent or “mens rea” is ordinarily an important part of finding him or her guilty, a conclusion that led the Court to interpret what seemed a strict liability crime as a crime demanding mens rea, in Staples v. United States. Demanding the appropriate culpable mental state seems to go hand in hand with allowing for the acquittal of people who are “out of their minds” in connection with their crimes. And as others have pointed out, the insanity defense has ancient roots and has been almost universally adopted in the United States.
With these various acknowledgements of insanity as a Constitution-relevant phenomenon, the precedents might appear to support its availability as a defense in criminal cases. Would it not be odd, after all, for there to be a right to a psychiatric expert if one is pleading insanity but no right to plead insanity?
There are, however, responses to these points and some independent reasons not to recognize the insanity defense.
Competency to be Executed
The fact that the Constitution prohibits the execution of people too insane to understand either that or why they are being executed does not entail a right to the insanity defense. In Ford, the Supreme Court held that putting a person to death when he cannot understand what is happening to him is an exercise in meaningless cruelty. This conclusion about pointlessness at the time of execution needn’t have anything to do with a defendant’s culpability or guilt at the time of the crime—it necessarily contemplates that guilty people will (one hopes) be the only ones in a position to take advantage of it. If anything, the availability of this way of avoiding the death penalty suggests that at least some people who start out insane at the time of their crime will nonetheless face not only conviction but perhaps a death sentence as well. Insanity in the end might accordingly do nothing to mitigate culpability but would simply undermine the retributive legitimacy of executions.
Psychiatric Expert for Insanity Defense
The argument that a right to an expert for an insanity defense implies a right to an insanity defense may seem more solid than the competency to be executed argument. Yet here too, there is a response. When state law gives people something, the state must provide fair procedures in connection with that something, even if it never had to provide the thing in the first place. This is often what procedural due process is all about—giving people a fair process before depriving them of something that they never had a constitutional right to in the first place. For example, there is no constitutional right to an appeal in a criminal case, but if the state grants such an appeal, it must provide indigent defendants with a free trial transcript and the effective assistance of counsel.
If state law grants an insanity defense, it could therefore follow that because the state has given it to a defendant, the state must make it possible for the defendant to make the case for satisfying its elements. In the same way, if the state provides an entrapment defense, then the defendant has the right to present testimony and evidence to support that defense. But that does not mean that the defendant has the right to an entrapment defense. Accordingly, the state’s greater power to eliminate the insanity defense entirely would not necessarily include the lesser power to provide an insanity defense but refuse to fund a psychiatric expert to support it.
Some Affirmative Reasons Not to Require an Insanity Defense
The above arguments first defend and then refute the defense of a right to an insanity defense. But there is an affirmative reason for a state not to have one, and therefore for the Constitution not to be read to require one. The insanity defense has not been a great success, and it might be time to abandon the pretense that it has.
The word “insane” sounds like it means afflicted with a mental illness. It does not mean that, or at least it means something far narrower than that. Different states have distinct definitions of the term, but many require proof that the defendant suffers from a condition that robs him of most or all of his ability to distinguish right from wrong or to understand the nature or quality of his actions. Some allow a defendant to show instead that his condition robs him of control over his behavior. The real impact of mental illness on criminal conduct is far more complex than existing legal tests imply. People may have less of a grip on reality than most others do but may have not completely taken leave of their senses, and they might have less willpower than a healthy person (much as a drug addict does) but are not literally incapable of any self-control. It is fair to say that the conditions posited by insanity defense law do not correspond well to actual conditions.
As a result of the disparity between mental illness and legal insanity, people who plead insanity have a very difficult time proving their case. This is a problem because once a defendant pleads insanity, he has generally conceded the elements of guilt and is relying completely on a finding of insanity. If he is mistaken in thinking that he has a chance at persuading the jury, he has therefore given up everything in the pursuit of a chimera. The insanity defense in that case would be operating as a shiny but worthless object, betraying those who believe in it.
Beyond juries’ reluctance to find people not guilty by reason of insanity, successful acquittees can find themselves spending more time behind bars (in places not that different from prisons) than they would have spent if convicted. This is because if a person is acquitted by reason of insanity, then he likely qualifies as mentally ill and dangerous, and the state is authorized to confine people in this category for as long as they remain that way. A person found guilty of robbery might have to spend a few years in prison (or even less), but if he is mentally ill and dangerous, it is not clear what would have to happen in a few years to change his status.
There is far greater indeterminacy here, with the corresponding lack of certainty about when the end of one’s sentence will arrive. It is no easy task for a jury to determine whether a defendant, at the time of his crime, understood that his actions were wrong—indeed, it is not even clear what it means to say that a person understands that criminal behavior is wrong. If abortion became a crime, many people around the country would not “understand” that abortion is wrong. And if one falls into the category, determining the “end” of one’s illness and dangerousness is even more difficult.
In response, one could cite the following example. Say you believe that killing your neighbor is justified, because he keeps revving his motorcycle engine whenever he passes your house. Say you kill him with that belief firmly in mind. You would not have a defense because your belief does not result from a mental disease or defect. That is true, but so what? Why is an act undertaken because of the same belief “insane” if the person has the belief due to a mental illness and “sane” and responsible if the person holds the belief because of his parents’ warped values or because of his selfishness?
What we have here is the problem of so-called moral luck. When you do something because of some circumstance in your life over which you lack control, it is arguably unfair to hold you responsible for your actions, as the only reason someone else (or everybody else) did not do the exact same thing is that the relevant circumstances differed in their lives. We could say this not only of circumstances like mental illness but about qualities of character, willpower, high intelligence, physical strength or weakness, patience, attention span, and the list goes on. If you had all of the same experiences, all of the same genes, and all of the same characteristics as another person facing the same circumstances as you, the notion is that you and the other person would react to a situation in the exact same way. If that is so, and it seems to many people likely that it is, then punishing one of you—by hypothesis because your genes, environment, etc. were different from the other’s—is arbitrary and unfair.
When a terrorist slaughters large numbers of civilians because he believes with every fiber of his being that his God wants him to do that, that what he is doing is right and just, how shall we handle him? I suspect that most of us would want to try and punish him severely. And we can do so, because he is not mentally disordered, and his beliefs stem from religion rather than a mental disease or defect. But is he truly more “responsible” for his actions than is a person suffering from bipolar disorder whose delusions tell him that killing those same civilians is the right thing to do?
In discussing the insanity defense, it is common to design hypothetical scenarios in which the people on trial act out of similar motives to those of an insane person but lack any comparable cognitive or emotional impairment. When we simply select as an excusing condition one source of criminal conduct, however, though other sources are equally outside the control of the defendant, it seems less than obvious that we guarantee anyone due process. For this reason, if we wish to have a criminal justice system, notwithstanding the enormous and often (maybe always) dispositive role of moral luck in giving rise to criminal conduct, it seems reasonable to conclude that notwithstanding its undeniable pedigree, the insanity defense need not be a required part of that system.