Attacks on the insanity defense the insanity defense refers to that branch of the concept of insanity which defines the exten actual way of mapping the brain and conclusively determining exactly what portion thereof is responsible for either type of behavior much less that one area is responsible for both. In essence even if true this theory is unprovable. There is also a statistical relationship between crime and mental illness. Guttmacker and Weihofen found 1.5 percent of the criminal population psychotic, 2.4 percent mentally defective, 6.9 percent neurotic, and 11.2 percent psychopathic (Jeffery, 1985:66).
These figures are very unconvincing. Additionally they are based on old diagnostic categories and procedures which are most unreliable. Also, the meaning of neurotic or psychotic or psychopathic is uncertain within the context of these studies and they do not refer to modern biological categories of brain disease. Terms such as insanity, mental illness, and mens rea have no scientific meaning, therefore we must leave as unspecified and uncertain the relationships between insanity, mental illness and criminal law. We certainly cannot conclude that mental illness bears any relationship to diseases of the brain, nor can we conclude that mental illness or insanity causes criminal behavior.
THE MYTH OF MENTAL ILLNESS
Not only is there no agreement as to the meaning of insanity and mental illness, but to add further confusion, there is a school of thought that states that mental illness is a myth and does not exist.
This approach is found in the works of such persons as Thomas Szasz (1961;1963) who argues that mental illness is a myth and label applied to behavior by psychiatrists who are making political and ethical decisions, and Laing (1969;1971) who claims that labels are being used by society to impose violence and control on people. View such as these and others deny the physical and biological basis of behavioral disorders. They separate completely biology and behavior, brain and behavior, and mental and physical. The fact that we refer to “mental” disease has been cited as evidence that we do not regard it as disease but as something outside the realm of biological science.
Szasz states, for example, that the psychiatrist confuses physical disease and neurological disorders with mental diseases. A study in evidence of this was done by Rosenhan (Ziskin, 1975:54) known as “Being Sane in Insane Places.” Rosenhan, a psychologist, placed eight normal people in mental hospitals as “pseudo-patients.” They were diagnosed as schizophrenic, and later on when they appeared normal, rediagnosed as schizophrenia in remission. After one experiment one hospital challenged Rosenhan to send them “pseudo-patients” during the next several months. At the end of the period the hospital announced that they had discovered that 12 percent of their admission were “pseudo-patients” from Rosenhan went in fact none had ever been sent.
USEFULNESS OF THE INSANITY DEFENSE
As we have already seen, there is much confusion dealing with the placement of insanity and mental illness, it’s definition, and even it’s very existence.
We have likewise seen the use of several of the various testing techniques used to determine mental illness and their shortcomings. This information alone would lead us to believe that the insanity defense needs at least to be revised and improved in many areas. What we have looked at thus far is what precedes the actual judgment of sanity. What we have not looked at, however, is that implementation of the actual judgment of sanity. That is to say, the actual results of the defense when successful.
I believe that it is here that we will see the most heinous travesties of justice. There are several decisions which can be reached when insanity is at last proven. These judgements include not guilty by reason of insanity (NGI), and guilty but mentally ill (GMI), with the later verdict not being implemented until the early eighties in an attempt to reform the insanity defense and decrease the amount of NGI verdicts. The NGI verdict is the more dangerous verdict and the one which I believe has the strongest argument against the insanity defense. The objection here is that it allows dangerous men to return to the streets where they commit heinous crimes.
Of the 300 persons committed on NGI verdicts 80 percent were released from mental hospitals by psychiatrists, and in several instances these mental patients went on to kill again (Jeffery, 1985;73). My belief is that psychiatrists and mental hospitals do not cure the mentally ill. This is the reality of the insanity defense which I find irrefutable; in many cases criminals are released due to loopholes such as the insanity defense to simply commit the same crime again. Even is these cases make up 10 out of 100,000, there now exist 10 crimes that need not have happened. The guilty but mentally ill approach has three serious flaws. First it strikes indirectly at the mens rea requirement, introducing the slippery notion that the accused had partial, but not complete, criminal intent.
Second, it creates a lesser and included offense that judges and juries may choose as simply a compromise verdict. They believe the accused probably did something wrong and deserves some punishment, but they are unwilling to bring in a verdict of guilty on the top charge. The GMI verdict would allow them to split the difference. Finally the GMI verdict is fraudulent on the issue of treatment. As proposed, it makes no provision for treatment of the person who has been declared mentally ill. The GBI option has already proved to be a bogus reform.
A 1981 Illinois law added the GMI as an additional verdict, retaining the traditional insanity defense. In Cook County, verdicts of not guilty by reason of insanity actually increased from 34 to 103 between 1981 and 1984. At the same time GMI went from 16 in 1982, the first year the option was available, to 87 in 1984. There has been much evidence of a “hydraulic” effect that was contrary to the law’s intent.
In both Illinois and Michigan, GMI verdicts involved people who would otherwise have been found guilty, not defendents who would have been found not guilty by reason of insanity (Walker, 1994;155-156). The real function of the GBI option is to appease public opinion. The public has little concern for the details of what actually happens to a mentally ill criminal defendent. Basically, it wants a symbolic statement of “guilty.” In practice, the GMI verdict has as much meaning as “guilty but brown eyes.” How dangerous is the GMI verdict? As we say with the NGI verdict, many extremely dangerous mentally ill criminals were simply released onto the streets where they committed the same crimes.
Does the GMI verdict solve this problem? We have some “natural experiments” on this questio rising from some court decisions. A 1971 decision forced to reassessment of 586 inmates of Pennsylvania’s Fairview State Hospital for the Criminaly Insane who were placed there under the GMI verdict. Over two-thirds were eventually released. Over the next four years, 27 percent were rearrested.
Eleven percent were rearrested for violent crime. Including some others who were rehospitalized for a violent act, a total of 14.5 percent of those released proved to be dangerous.
ABOLISH THE INSANITY DEFENSE
Abolishing the insanity defense is easier said than done for the simple reason that the mens rea requirement remains a fundamental legal principle. The proposal that “mental condition shall not be a defense to any charge of criminal conduct” could be interpreted in one of two ways.
The broader interpretation would mean that absolutly no aspect of mental condition could be taken into account. In effect, this interpretation would abolish the mens rea requirement altogether. The prosecution would not have to prove anything about the accused’s mental state. This is unneccessarry. For one thing, it would wipe out the distintions that separarte first-degree murder, second-degree murder, and manslaughter. It is doubtful that anyone againt the insanity defense would choose to take this approach.
So sweeping, in fact, would be it’s effect, that it would probably be declared unconstitutuional. A more limited reading of the wording “mental condition shall not be a defense to any charge of criminal conduct” would mean that an affermative plea of “not guilty by reason of insanity” could not be raised. The crucial distinction here is drawn between affermative and ordinary defenses. An ordinary defense is simply an attempt to shown that the prosecution has failed to connect the accused with the crime, a defense used in everyday law. An affermative defense is raised when the prosecution has connected the accused with the crime, as in an example of self-defense.
The defense argues that, yes, the accused did shoot and kill the person and did so intentionally, but because the act was commited in self-defense the accused does not bear criminal responsibilty for it. The same is true in the case of a criminal act commited under duress. The insanity defense, in this respect, is an affermative defense. It is this usage that needs to be abolished. In cases such as self defense it may be an adequate and totally acceptable defense, for in how many cases do you hear of a man being aquitted due to a self-defense plea returning to the streets in order to kill again? To draw a comparison between the two and argue that both defenses are neccessarry to the total order is naive and unfounded.
CONCLUSION
The law of insanity involves the conceptes of mens rea and punishments, as does the criminal law in general.
Insanity is a legal concept, not a medical concept, and insanity is defined within the context of an adversary system wherin psychiatrists and lawyers battle one another over the meaning of terms such as “right and wrong” and “ability to control one’s behavior.” Mental illness and mental disease are psychoanalytic concepts, not scientific concepts. Mental illness is defined by talking to people or by giving them written tests, and there is no agreement among psychiatrists as to the meaning of this illness or whether or not it really exists. Some psychiatrists call mental illness a myth. The psychoanalyst has not been successful in treating or predicting mental illness. The psychoanalyst has never established a casual relationship between mental illness and criminal behavior. The insanity defense would require both a mental illness and a relationship between the illness and the criminal behavior, neither of which could be scientificly established.
Of the criminals both aquited and convicted using the insanity defense, a good number have shown conclusive evidence of recidivism. Many dangerous persons are allowed to return to the streets and many non-dangerous persons are forced into facilities due to an insanity plea adding further confusion and injustice within both the legal and medical systems. In my opinion the iunsanity defense is impossible to maintain on the basis of rules such as the M’Naghten Rule, and the relationship between law and psychiatry must be reestablished on a more scientific level, based on the neurological work now going on in the brain sciences. The insanity defense is impracticle in it’s present usage and should therefore be abolished.
