INSANITY ACQUITTEES IN THE COMMUNITY: LEGAL FOUNDATIONS AND CLINICAL CONUNDRUMS.

• Author: Vitacco, Michael J.

ABSTRACT

This Article will provide an in-depth discussion of legal cases that have shaped American policy dealing with individuals found not guilty by reason of insanity (NGRI) and deemed fit to return to the community. This Article will discuss several aspects of conditional release relevant to the legal community. Such factors include societal attitudes, relevant legal case law, and data-supported outcomes of individuals placed back in the community, In addition, this Article will deal with issues related to violence risk assessment and evaluate risk assessment effectiveness in determining who may be an appropriate candidate for community return. Contrary to popular belief, individuals adjudicated NGRI, even for violent offenses, are generally not at high-risk for future violence. This review will present information demonstrating the low recidivism risk by individuals adjudicated NGRI and released back to the community. This Article demonstrates the promise of conditional release for insanity acquittees from both public safety and fiscally responsible positions. This Article summarizes and lays out arguments for continued, and potentially even expanded, use of conditional release to properly manage insanity acquittees.

TABLE OF CONTENTS Introduction 848 I. Insanity Defense Attitudes, Conditional Release, and the Law 849 II. Violence Risk Assessment with Insanity Acquittees 856 III. Post-Foucha Issues: Dangerousness, Diagnoses, and Commitment 861 Conclusion 868 INTRODUCTION

The not guilty by reason of insanity defense (NGRI) remains one of the most debated and contested areas of mental health law, replete with legal, moral, and political overtones. The idea that someone can commit a crime, even a violent one, and be found non-responsible in the eyes of the law, has created a public backlash against the insanity defense, including its abolition in four states (Kansas, Montana, Idaho, and Utah). (1) Despite the unpopularity of the NGRI defense, there has been an increasing trend toward discharging insanity acquittees from the hospital back to community placements. (2) Although society is often against a return to the community for insanity acquittees, it is fiscally and clinically prudent to allow such conditional discharges to continue. These individuals are not simply discharged to the community with unfettered access to the community. Instead, insanity acquittees must follow a series of conditions in order to maintain their newfound freedoms. Known as conditional release, insanity acquittees typically must remain medication compliant, attend specialized therapy, not possess weapons, abstain from substance abuse, and, of course, not engage in criminal behavior.

Several landmark cases over the previous twenty-five years have paved the way for the development of specialized programs to treat and maintain NGRI acquittees in their respective communities. (3) Additionally, many legislatures have acted in accordance with this judicial shift through the provision of legal mechanisms for releasing individuals adjudicated NGRI back to the community. This Article focuses on substantial areas of conditional release. Part I unpacks attitudes toward the insanity defense and its influence on the treatment of insanity acquittees. This part considers the growing trend of allowing insanity acquittees to be returned to their respective communities, even in light of substantial misinformation perpetuated regarding the relationship between violence and mental illness. Part II provides an overview of violence risk assessment, specifically as it relates to potential danger with insanity acquittees and potential community placement. This part outlines limitations of current risk assessment methodology for predicting violence and recidivism with insanity acquittees in the community on conditional release. An important limitation of violence risk assessments is that most items on such risk assessment measures are unrelated to actual conditional release outcomes. Finally, Part III provides summaries of recent data related to the success of conditional release across multiple states. Such outcomes could provide an impetus for creating empirically-informed public policies related to the treatment and management of insanity acquittees.

1. INSANITY DEFENSE ATTITUDES, CONDITIONAL RELEASE, AND THE LAW

   The proper way to treat and manage individuals adjudicated NGRI remains an evolving area of public policy and the law. However, even before policy-makers and legislatures consider how to best manage insanity acquittees, it is important to point to numbers showing the general discontentment with the insanity defense as a whole, which is often viewed as an abused loophole allowing individuals to avoid their just deserts for criminal behavior.

   Several research studies have demonstrated society's disdain for the defense as a whole, and there have even been numerous efforts to accurately capture attitudes. For example, the Insanity Defense Attitude-Revised (IDA-R) was developed to evaluate overall attitudes toward the defense. (4) The authors who designed the study found the scale was underpinned by two factors: (1) orientation toward strict liability and (2) concern about perceived injustice and danger. (5) The authors found general discontent regarding the insanity defense among this sample of jurors. (6)

   In another article, Valerie Hans conducted a survey with 330 individuals who were recruited using random digit telephone calls in a county in Delaware. (7) Results of this telephone survey were mixed. For instance, 49% of surveyed individuals were in favor of abolishing the insanity defense, and almost 95% were in favor of reforming the insanity defense. (8) Yet, in an unexpected finding, just over three-fourths of surveyed individuals endorsed that there are times when an insanity defense is justified, and 64% endorsed the insanity defense as a necessary part of our legal system. (9)

   Studies looking at characteristics underpinning negative attitudes have found that a positive view of capital punishment and overestimating the use of the insanity defense are linked to a stronger negative attitude toward the defense. (10) In discussing what he attributed as the "insanity defense problem," Michael Perlin wrote about a very salient issue affecting attitudes toward the insanity defense. (11) With the use of so-called "designer defenses," the public has seemingly grown less tolerant of mental health issues, including the use of the insanity defense amongst the most seriously and persistently mentally ill. The concerns over faking the insanity defense as a legal loophole are now firmly engrained.

   In a thoughtful attempt at overcoming problematic attitudes toward the insanity defense, one researcher suggested that a flowchart, demonstrating the consequences and "time" completed with an insanity defense would ultimately prove useful in the reduction of biases. (12) As noted in this thesis, the presentation to college students of information regarding dispositional outcome had an unattended effect: those seeing the information about dispositional outcome became harsher in their sentence and less inclined to support an insanity finding. (13) This paradoxical finding underscores a central issue in the field of mental health and the law: How to ensure fair consideration of appropriate pleas for mentally ill individuals? It also raises a critical question: If education does not influence juror attitudes, what will? On this front, it appears views regarding the insanity defense are very resistant to change. (14)

   The importance of understanding insanity defense attitudes when considering the conditional release of acquittees is evident. If society is opposed to individuals being adjudicated not criminally responsible on the basis of their mental illness, their subsequent integration to the community would seemingly evoke more problematic responses. The idea that society is opposed to the return of NGRI acquittees is a logical downward extension stemming from the strong negative attitudes toward the insanity defense. Yet, specific research has not been conducted on attitudes toward the return of insanity acquittees to the community. Moreover, understanding the nature of the insanity defense lays critical groundwork for furthering knowledge of how conditional release functions.

   The majority of society, based on research regarding the insanity defense, does not seem to be unopposed to a return to the days where the primary methodology of dealing with NGRI acquittees was by not dealing with them at all. The typical method revolved around placing them in long-term forensic hospitals with minimal to no chance of release. Warehousing the mentally ill was the norm for many years, until the 1960s when there was a concerted effort to move patients from hospitals to the community. Such warehousing had dire and, likely, unintended consequences, including poor mental health treatment, higher mortality, and greater victimization, to name a few. (15) During this time, insanity acquittees were sentenced to indeterminate sentences, which generally meant little-to-no chance of actual release from the hospital. Once found not responsible for their criminal behavior, these individuals were presumed dangerous and were not afforded appropriate due process that would provide an avenue for release. Yet, this area of law remains in flux.

   A variety of legal cases have lit the path for insanity acquittees to be released into the community, even though there remain substantial challenges from the legal system and a high level of public distrust regarding mentally ill individuals with criminal records, often with multiple crimes, including violent crimes, returning to their home communities. This area of law not only requires a focus on defining the limitations to government's power relative to mandated hospitalization, but also delving into the law's role in conditional...