§ 25.06 ABOLITION OF THE INSANITY DEFENSE

• Jurisdiction: United States

§ 25.06. Abolition of the Insanity Defense¹²⁸

[A] Abolitionist Arguments

Opponents of the insanity defense (abolitionists, for short) come from different ideological and philosophical vantage points. Some abolitionists are political "hawks" who favor abolition of the defense as part of a broader effort to reduce the number of excuse defenses recognized in the criminal law. In contrast, "dove" abolitionists would like to expand the law of excuses, but for reasons of equity do not want to treat mentally ill people more leniently than others whom these critics consider equally morally blameless but who are punished for their wrongdoing. Public opinion surveys also suggest that abolitionism is founded on both retributive and utilitarian grounds.¹²⁹

[1] Abuse

Some abolitionists assert that the insanity defense results in abuse of the criminal justice system. They claim that the defense is frequently asserted and too often success-ful.¹³⁰ Implicit in this argument is that insanity claims, including successful ones, are often fraudulent in nature. As a result, wrongdoers "walk free" because they are able to persuade psychiatrists and gullible juries of their nonexistent madness.

There is virtually no empirical support for this proposition.¹³¹ According to one team of commentators, "[a]ll empirical analyses . . . have been consistent: the public, legal profession and . . . 1egislators 'dramatically' and 'grossly' overestimate both the frequency and the success rate of the insanity plea."¹³²

Although statistics regarding use of the insanity plea are sketchy,¹³³ it appears that the defense is rarely invoked; when it is invoked, there is often agreement among the experts that the defendant suffers from a mental illness; and the success rate for the insanity plea, although variable, is usually extremely low.¹³⁴ For example, in one reported New Jersey study, NGRI verdicts were secured in only half of one percent of all cases handled by the Office of Public Defenders.¹³⁵ In a survey of 36 states for the years 1970-1995, there were only 16,379 insanity acquittals, or an average of 33.4 acquittals per state per year in the many hundreds of thousands of felony and misdemeanor prosecutions during that period, including a modest decline in such acquittals beginning in the late 1980s.¹³⁶ As a result of jury antipathy to insanity claims, many criminal defense lawyers view the defense as a plea of last resort.

[2] Counter-Deterrence

Although the insanity defense may serve a valid utilitarian purpose with genuinely insane people,¹³⁷ there is abolitionist fear that the defense may have a negative impact on those who are not mentally ill, and on those whose illnesses are not severe enough to qualify for acquittal. These abolitionists reason that awareness by such people that the law recognizes an insanity defense may reduce the deterrent effect of the criminal sanction. A would-be wrongdoer may believe, although perhaps inaccurately, that if she is caught for her crime she will be able to avoid conviction or commitment by raising the insanity defense.

Defenders of the insanity plea contend that even if this argument is correct, which they strongly dispute, the solution is not to abolish the defense, but instead is to educate the public regarding the true effect of the insanity defense (e.g., that long-term civil commitment usually follows the rare acquittal), and/or place the burden of proof on the defendant to prove insanity, rather than on the prosecution to prove the defendant's sanity.¹³⁸

[3] Conflict of Perspectives

Some abolitionists contend that the criminal law and psychiatry cannot mix any more than oil and water does. They point out that the criminal law and psychiatry look at human conduct from different philosophical perspectives.¹³⁹ The law is premised on the concept of free will, whereas psychiatry typically is deterministic regarding human conduct. From the psychiatric point of view, "[t]he study of man . . . has an undoubted tendency to make him, in the eyes of his investigator, a creature of forces beyond its control. . . . Law, on the other hand, stands pre-eminently for the freedom of the will."¹⁴⁰ The distinction the criminal law seeks to draw between the mad and the bad, therefore, is an illusion.

Psychiatrist Karl Menninger agreed with the claim that lawyers and psychiatrists have conflicting perspectives on human conduct. He stated that "[t]he Law—with a capital L—has no real relation to the affairs of men." He observed disparagingly that lawyers are interested in placing or rebutting "blame," and that "the word justice, which is so dear to lawyers, is one which the doctor qua scientist simply does not use or readily understand."¹⁴¹

The conflict-of-perspectives argument has much to commend it, but it arguably proves too much. Although psychiatrists are less apt to blame wrongdoers than are lawyers and the general public, the idea that some people are too sick to be blamed for their conduct is not antithetical to the criminal law, nor does it endanger the paradigm of free will. The criminal law is based on the view that, although humans generally possess free will, some people are so irrational that they lack the basic attributes of...