A new approach to insanity acquittee recidivism: redefining the class of truly responsible recidivists.

• Author: Caffrey, Maura
• Position: Guilty but mentally ill

INTRODUCTION

After receiving verdicts of not guilty by reason of insanity, John McGee and Ronald Manlen were committed to Michigan mental hospitals. (1) The center for forensic psychiatry later determined that McGee and Manlen were "no longer mentally ill and dangerous" and released them. (2) Shortly after being released, McGee kicked his wife to death (3) and Manlen raped two women. (4)

The public outcry that followed these tragic events prompted the Michigan legislature to statutorily authorize the "guilty but mentally ill" (GBMI) verdict in cases where a defendant raises the insanity defense. (5) The verdict permits the jury to find that although the defendant is mentally ill, she is not legally insane, and she may be given a full criminal sentence. A defendant who receives a GBMI verdict must receive appropriate psychiatric treatment while imprisoned. (6)

Several other states, faced with similar high-profile crimes committed by released insanity acquittees, also adopted the GBMI verdict. (7) Some state legislatures considered the complete abolition of the insanity defense, (8) while others heightened the requirements for release from post-insanity acquittal commitment (PIAC) (9) or implemented conditional release programs. (10)

This Comment evaluates the current methods employed by states to cope with insanity acquittee recidivists and proposes a new solution that strikes a balance between rehabilitating insane offenders and protecting the public from dangerous acquittees. Part I evaluates the basic problem of insanity acquittee recidivism and explores the roles played by inaccurate release decisions and post-release medication noncompliance in exacerbating the problem. Part II addresses various approaches adopted by state legislatures and courts to deal with insanity acquittee recidivism. This Comment will argue that these approaches are impractical, inequitable, or unconstitutional. Finally, in Part III, this Comment proposes a new method of minimizing insanity acquittee recidivism: abolishing the insanity defense for acquittee recidivists who are deemed sane upon release and who subsequently fail to abide by their post-release treatment regimen.

1. THE PROBLEM OF INSANITY ACQUITTEE RECIDIVISM

   Insanity acquittee recidivism is a problem of grave concern for both the criminal justice system and the mental health profession. Although "[i]nsanity acquittees have been the focus of intense study" since the mid-1970s, (11) researchers have found it difficult to determine precise meta-analysis recidivism rates. (12) One source of difficulty is that the actual definition of recidivism varies significantly from study to study: some researchers define recidivism broadly, including any incidents of rehospitalization based on acts for which the acquittee could have been rearrested; (13) others define it more narrowly, only including rearrests. (14) Furthermore, "[l]ocal and jurisdictional nuances [may] have a dramatic effect on the rate[s] of rearrest," (15) thereby making it more difficult for researchers to deduce statistical trends from the recidivism data available.

   Despite the methodological inconsistencies among the studies, one general conclusion may be drawn. The recidivism rate of insanity acquittees roughly corresponds to the recidivism rate of the general prison population. (16) Thus, many of the standard risk factors commonly employed to predict criminal recidivism are equally applicable to insanity acquittees. (17) Past criminal violence is of particular salience as "the clinical consensus is that a history of violent behavior in an individual is the single best predictor of future violence." (18)

   This suggests that an insanity acquittee's history of prior violence--and not her mental illness per se--will increase the likelihood that she will act violently in the future. If, as many researchers assert, insanity acquittees as a class are no more violent than convicted defendants, (19) then the similarity between the recidivism rates makes sense: "the number and nature of prior violent acts," and not one's diagnosis, is the most accurate predictor of future violence. (20) However, several important factors distinguish imprisonment from PIAC and make the insanity acquittee recidivism rate more troubling.

   First, state legislatures have adopted various statutes to deal with the problem of convicted recidivists. (21) By 1992, the federal system and all fifty states had enacted some form of sentence-enhancing recidivism statute. (22) Although the effectiveness of such laws is hotly debated, (23) the fact remains that institutional mechanisms are in place to deal with repeat convicted offenders. Under a "three strikes law," for example, a third-time convicted felon generally will be subjected to a substantially longer term of imprisonment. (24)

   In contrast, there is no similar guarantee of incapacitation in the context of insanity acquittee recidivists. Most likely, a reoffending acquittee will be reinstitutionalized. Unlike the statutorily imposed sentence enhancement that a convicted recidivist will receive, however, the length of an acquittee's confinement is far less definite. (25) Perhaps a court will consider an acquittee's past recidivism when it eventually decides whether or not to release her. However, recidivism will be only one factor among many that the court will take into account in assessing the current dangerousness of an acquittee and her suitability for release. (26)

   Furthermore, and perhaps most significantly, consideration of recidivism in a release decision may raise constitutional issues that will prevent the continued confinement of an insanity acquittee who still poses a danger to society. In Foucha v. Louisiana, the United States Supreme Court held that under the Due Process Clause of the Fourteenth Amendment, a state may not continue to hold an insanity acquittee who is still considered dangerous but is no longer mentally ill. (27) The Court reiterated the rule it set forth in Jones v. United States that a "'committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous,' i.e., [that] the acquittee may be held as long as he is both mentally ill and dangerous, but no longer." (28) Thus, if a judge were to prolong an insanity acquittee's confinement solely because the acquittee was a known recidivist, such action would violate Foucha if the acquittee were no longer considered mentally ill. (29) Therefore, although recidivism will generally guarantee a longer sentence for a convicted offender, the role recidivism will play in determining the length of an acquittee's confinement is less definitive.

   A second factor that distinguishes insanity acquittee recidivism from convicted offender recidivism--and makes the similarity in recidivism rates more troubling--is that PIAC focuses on treating the problems of acquittees, whereas ordinary imprisonment does not specifically seek to rehabilitate prisoners. (30) In Jones, Justice Powell observed that PIAC is intended to "treat the individual's mental illness and protect him and society from his potential dangerousness." (31) Thus, one would hope that when the acquittee is eventually released from confinement (i.e., she is no longer considered both mentally ill and dangerous), many of the problems that resulted in commitment would be resolved, or at the very least, substantially improved. (32) The rehabilitation efforts of the PIAC system should, in theory, improve the irrational thought process that led the acquittee to commit criminal acts that resulted in her initial commitment. The same hope cannot be fostered with regard to the prison system, which values retribution and incapacitation over the rehabilitation of inmates. (33) American prisons "rehabilitate[] no one." (34) Rather, "[m]ost criminal offenders who change for the better do so in spite of prison not because of it." (35)

   If PIAC treats the acquittee's underlying problems and imprisonment

   merely punishes and confines convicts, what accounts for the similar rates of post-release recidivism among the two groups of offenders? The premature release of insanity acquittees and post-release medication noncompliance are two possible explanations.

   1. Inaccurate, Premature Release Decisions

      An acquittee must be released from PIAC when she is adjudged no longer to be both mentally ill and dangerous. (36) Expert testimony regarding the acquittee's current mental health and future dangerousness will often be decisive in the release decision. (37) However, the ability of experts to predict accurately the mental stability and safety of an acquittee upon release from the hospital is questionable. Studies on expert risk assessment suggest different rates of accuracy, (38) the most favorable study reporting that expert predictions are correct just over fifty percent of the time. (39) Thus, approximately half of all insanity acquittees will either be prematurely released or unnecessarily confined.

      Although the development of more advanced actuarial risk assessment tools may improve the accuracy of experts' predictions, (40) inherent limitations remain that will inevitably produce some inaccurate decisions. No expert can account for every future precipitating factor that may cause an insanity acquittee to decompensate and act dangerously. The mind is exceedingly complex, and psychological diseases are not amenable to precise scientific explanation. Thus, even the most experienced expert, utilizing the most advanced tools, will find it difficult to assess the future behavior of many acquittees. (41) This is particularly true when the only context in which the acquittee has been observed is the safe, controlled environment of the hospital.

      Although inaccurate release decisions certainly affect the rate of insanity acquittee recidivism, solutions to this problem are beyond the scope of this Comment, (42) which focuses on post-release means of reducing...