§ 15.6 Guilty Except for Insanity

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 15.6 GUILTY EXCEPT FOR INSANITY

A criminal defendant can be found "guilty except for insanity" pursuant to ORS 161.295, which provides as follows:

(1) A person is guilty except for insanity if, as a result of qualifying mental disorder at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.

(2) As used in chapter 743, Oregon Laws 1971 [the Criminal Code], the term "qualifying mental disorder" does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, nor does the term include any abnormality constituting solely a personality disorder.

ORS 161.295.

The meaning of the terms and phrases used in the statute, including "qualifying mental disorder," an "abnormality manifested only by repeated criminal or otherwise antisocial conduct," and "any abnormality constitution solely a personality disorder," is discussed in § 15.2-2(a) to § 15.2-2(d). As discussed there, sexual disorders, and drug and alcohol disorders, do not qualify for a GEI defense.

The insanity defense is a creation of statute. Some other states have a more restricted defense, which is constitutionally permissible. For example, in Clark v. Arizona, 548 US 735, 742-44, 126 S Ct 2709, 165 L Ed 2d 842 (2006), the Court upheld an Arizona insanity test that required the defendant to demonstrate that "at the time of the commission of the criminal act [the person] was afflicted with a mental disease or defect of such severity that [the person] did not know the criminal act was wrong."

The United States Supreme Court approved Kansas's law, which essentially has no insanity defense; a defendant can argue that the defendant's mental illness reduced or eliminated any mens rea (the "cognitive incapacity test"). Kahler v. Kansas, ___ US ___, 140 S Ct 1021, 206 L Ed 2d 312 (2020).

§ 15.6-1 Raising the Insanity Issue

Effective in 1984, the Oregon Legislature changed the wording of the statute from "not responsible . . . [due to] mental disease or defect [now "qualifying mental disorder"]" to "guilty except for insanity." Or Laws 1983, ch 800, § 1; ORS 161.295. See ORS 161.319. From 1977 to the end of 1983, the verdict was "not responsible . . . [due to] mental disease or defect [qualifying mental disorder]." From 1971 to 1977, the verdict was an acquittal "on grounds of mental disease or defect" [qualifying mental disorder] excluding responsibility." Or Laws 1977, ch 380, § 4.

A defendant found GEI is treated in some respects as if the defendant has been convicted of a crime, and in some respects as if the defendant has been acquitted. (The disposition of defendants found GEI is discussed in § 15.7 to § 15.7-3.) The Oregon Supreme Court noted in dicta that the post-1983 statute characterizes the defendant as guilty of a crime, and recognizes that a defendant who is found GEI "has committed all elements of the crime, although the defendant is to be treated differently at the dispositional stage of the proceedings." State v. Olmstead, 310 Or 455, 464, 800 P2d 277 (1990). Elsewhere, the court noted that before the defendant can be found GEI, the defendant "must be found 'guilty' of that crime," in that the state must prove all the elements of the crime and that the defendant failed to prove any affirmative defense. State v. Counts, 311 Or 616, 620 & n 7, 816 P2d 1157 (1991). The state must establish that the defendant was acting with the mental state charged in the indictment, for example, intentionally for murder, or recklessly for manslaughter.

The Oregon Court of Appeals has ruled that a GEI adjudication is not a conviction. State v. Saunders, 195 Or App 357, 361, 97 P3d 1261 (2004), rev den, 338 Or 124 (2005). This means that a GEI adjudication does not count in a criminal-history calculation.

COMMENT

In the authors' view, a GEI verdict is unique, having characteristics of both a guilty finding and an acquittal. See Wayne R. LaFave, Criminal Law § 7.1 (5th ed 2010) ("The insanity defense . . . is not acquittal and outright release of the accused but rather a special form of verdict.").

A defendant who is found GEI may not be assessed any costs or attorney fees under the applicable statutes. State v. Gile, 161 Or App 146, 153, 985 P2d 199 (1999). The GEI defendant may not be assessed restitution. State v. Thomas, 187 Or App 762, 763, 69 P3d 814 (2003).

Before the 1984 amendment to the statute, defendants who were found "not responsible" were not convicted and, therefore, they could not pursue postconviction relief from the finding. The proper remedy was by writ of habeas corpus. Now, a defendant who is found GEI may pursue postconviction relief. Mueller v. Benning, 314 Or 615, 618-19, 841 P2d 640 (1992).

If the defendant is convicted of a serious felony, the PSRB potentially will have jurisdiction over the defendant, for the amount of time possible as set in the statutory maximum, the guidelines to the contrary notwithstanding. OAR 213-009-0002 (sentencing guidelines do not apply to defendants who are found GEI). If the defendant is found GEI for multiple crimes, the judge may impose consecutive commitment terms, if the judge makes the required findings to support consecutive sentences. State v. Brooks, 187 Or App 388, 399-400, 67 P3d 426, rev den, 335 Or 578 (2003).

The defendant may or may not be released before the set commitment period has passed; that decision is up to the PSRB. The trial court has no control over the defendant's future after placing the defendant under the jurisdiction of the PSRB. State v. Pilip, 111 Or App 649, 650-51, 826 P2d 125 (1992). See § 15.8-1 to § 15.8-6 (the PSRB's jurisdiction).

See § 15.3-2(c) for a discussion of the civil commitment of a "sexually dangerous" offender.

The PSRB is bound by the court's determination of the period of the PSRB's jurisdiction. The PSRB may not, for example, merge counts. Anderson v. Psychiatric Security Review Board, 65 Or App 69, 72, 670 P2d 185 (1983).

Oregon's PSRB is almost unique, and material from outside the state may be seriously misleading to an Oregon lawyer. See Jeffrey L. Rogers, 1981 Oregon Legislation Relating to the Insanity Defense and the Psychiatric Security Review Board, 18 Willamette L Rev 23 (1982) (written by one of the PSRB's founders); Carolyn Alexander, Oregon's Psychiatric Security Review Board: Trouble in Paradise, 22 Law & Psychol Rev 1 (1998) (history and description of the PSRB's strong and weak points). Connecticut has had a PSRB since 1985, which has some similarities to Oregon's PSRB. See www.ct.gov/psrb/cwp/view.asp?a=2502&q=312772. Arizona established one in 1994. See https://azdhs.gov/psrb/index.php.

As a practical matter, if the defendant's presumptive sentencing guidelines term is at a low level, a GEI result may be more of an imposition on the defendant than a simple guilty verdict. Yet, if the defendant is very ill, the lawyer may conclude that spending a period of time under the jurisdiction of the PSRB, which would probably mean that the defendant would be in the hospital or in a residential treatment facility, would be in the defendant's best interests. This situation presents difficult ethical issues, which must be resolved on a case-by-case basis.

PRACTICE TIP

When considering a GEI defense, the lawyer may wish to determine what mental-health facilities are available in the corrections setting, or, when appropriate, in the community. The Department of Corrections (DOC) has extensive facilities for treating mentally ill inmates, although under the DOC the inmate must be willing to receive treatment. The DOC website is useful: www.oregon.gov/doc/pages/default.aspx.

The mental-health care available from the DOC

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