Punishing Temporary Drug-induced Insanity: an Analysis Ofstate v. Hotz, 281 Neb. 260, 795 N.w.2d 645 (2011)

• Publication year: 2021

91 Nebraska L. Rev. 502. Punishing Temporary Drug-Induced Insanity: An Analysis ofState v. Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011)

Punishing Temporary Drug-Induced Insanity: An Analysis of State v. Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011)(fn*)

TABLE OF CONTENTS

I. Introduction..........................................503

II. Insanity Defense Background.........................504
A. Insanity Defense Generally........................504
B. Insanity Defense in Nebraska .....................506

III. Voluntary Intoxication Defense Background ........... 507
A. Voluntary Intoxication Defense Generally ..........507
B. Voluntary Intoxication Defense in Nebraska .......509

IV. Temporary and Settled Drug-Induced Insanity Background ...........................................510
A. Temporary and Settled Drug-Induced Insanity Generally ......................................... 510
B. Temporary and Settled Drug-Induced Insanity in Nebraska ......................................... 512

V. Facts, Procedural Posture, and Disposition of State v. Hotz .................................................. 514

VI. The Two Prongs of Settled Drug-Induced Insanity .....517
A. "Intermittent" Settled Insanity ....................517
B. "Prolonged" and "Permanent" Settled Insanity.....518
C. Is Differential Treatment of Settled and Temporary Insanity Justified? ................................519

VII. The Conflict Between Retributivism and Utilitarianism ........................................ 523
A. Retributivism and Punishing the Temporarily Insane ............................................ 523

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B. Utilitarianism and Punishing the Temporarily Insane............................................524

VIII. The Mental Disease Requirement .....................525

IX.The Offense of Reckless or Negligent Intoxication......527

X.Conclusion............................................528

I. INTRODUCTION

On a cold December afternoon, two roommates-Joseph Hotz and Kenneth Pfeiffer-consumed psilocybin mushrooms.(fn1) Two hours later, Pfeiffer was dead by Hotz's hands.(fn2) The intervening events were more bizarre and horrific than any after-school special. By stabbing his roommate to death in the midst of a drug-induced paranoia, Hotz did the unthinkable while he was unable to think.

Defenses that palliate a defendant's criminal liability because of intoxication are "[f]requently reviled" and "ever-controversial."(fn3) State v. Hotz raises the difficult question of whether a criminal intent formed in the midst of temporary drug-induced insanity is one deserving of punishment. The answer depends on whether the criminal law is viewed through the prism of retributivism or utilitarianism. An act committed in the midst of insanity, whatever its cause, is not as culpable as an act committed while sane. However, excusing an offender by reason of temporary drug-induced insanity fails to protect the public from a potentially dangerous individual.

In extending to other drugs its prior case law denying the insanity defense to those temporarily insane due to the effects of alcohol, the Nebraska Supreme Court failed to relate its decision to the conflicting rationales of punishment. By treating Hotz's criminal act the same as any other, the court perhaps worked an injustice on a less than fully culpable offender. Surprisingly, the court suggested that if only Hotz had severely abused drugs over a prolonged period of time-instead of experimenting with drugs recreationally-he may well have been excused of criminal liability under the settled-insanity doctrine.(fn4)

This Note begins by briefly outlining the defenses of insanity and voluntary intoxication, both in Nebraska and beyond. Next, this Note provides an outline of the status of both temporary and settled drug-induced insanity, both in general and in Nebraska. Following the overview of the relevant criminal law, the facts and holdings of State v. Hotz will be recounted.

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This Note's analysis starts by tracing the different strands of the settled-insanity doctrine and the justifications for its existence. Ultimately, this Note concludes that the settled-insanity doctrine, as contemplated by the Supreme Court of Nebraska and expounded elsewhere, is unsound on retributive grounds. Next, this Note discusses how the competing aims of retributivism and utilitarianism, particularly incapacitation, are set in conflict by temporary drug-induced insanity. Finally, this Note concludes that the best way for the law to address offenders like Hotz is through an offense of reckless or negligent intoxication. Culpability, and therefore criminal liability, should be based on the offender's decision to become intoxicated and not the criminal act committed in the midst of temporary drug-induced insanity.

II. INSANITY DEFENSE BACKGROUND

A. Insanity Defense Generally

The insanity defense, "developed as a means of saving from retributive punishment those individuals who were so different from others that they could not be blamed for what they had done,"(fn5) has ancient and geographically varied origins. A defense based on the offender's insanity is found in ancient Muslim, Hebraic, Roman,(fn6) and Chinese law.(fn7) Marcus Aurelius, Roman emperor from Ad 121-180, is credited with the maxim furiosus solo furore punitur-madness is its own sole punishment.(fn8)

The four tests for insanity employed by modern courts in the United States are the M'Naghten, Model Penal Code (MPC), "irresistible impulse," and Durham or "product" tests.(fn9) Of these four, the M'Naghten and MPC tests are the most commonly used.(fn10) Under the M'Naghten test:

[T]o establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.(fn11)

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Although they materially differ in other elements of the defense,(fn12) the MPC,(fn13) Durham,(fn14) and "irresistible impulse"(fn15) standards also require some form of mental disease, defect, or illness.

The insanity defense became the object of legislative reform following the acquittal of John Hinkley Jr.-the failed assassin of President Reagan-by reason of insanity.(fn16) During the late 1970s, twenty-four states made their insanity standards less inclusive.(fn17) For its part, Congress considered a number of proposals to abolish the insanity defense but eventually settled on evidentiary and procedural reforms.(fn18) Some states, not satisfied with procedural limits, entirely abolished the insanity defense which, prior to 1979, had been recognized in every state in the Union.(fn19) Although courts voided early legislative attempts to abolish the insanity defense as violations of due process,(fn20) the judiciary proved more amenable to such legislation toward the end of the twentieth and the beginning of the twenty-first centuries.(fn21) Currently, four states-Idaho, Utah, Montana, and Kansas-do not excuse offenders by reason of insanity.(fn22)

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B. Insanity Defense in Nebraska

The M'Naghten standard was established early in Nebraska(fn23) and has remained the only test for insanity used in the state.(fn24) Early decisions, however, distinguished between "partial" and "general" insanity. In Thurman v. State,(fn25) the defendant was charged with "shooting with intent to kill" and attempted to interpose an insanity defense.(fn26) The defendant was apparently lucid at times and the district court instructed the jury "[t]hat the law recognizes partial as well as general insanity; that a person may be insane upon one or more subjects, and sane as to others."(fn27) The district court further instructed the jury that "[i]t is not every delusion that can be considered an insane delusion. The delusion must be of such a character that, if things were as the delusion imagined them to be, they would justify the act springing from the delusion."(fn28) The Nebraska Supreme Court affirmed the instructions.(fn29)

In Kraus v. State,(fn30) the jury was given the insanity instruction approved in Thurman but without any limitation for those defendants who were only "partially" insane.(fn31) The Nebraska Supreme Court called the distinction between the "generally" insane and the "partially" insane (those who had insane delusions but were otherwise sane) arbitrary and overruled Thurman.(fn32) The court found that excusing offenders by reason of insanity only if they would have been justified in acting had their delusions been reality "practically holds a man confessed to be insane, accountable for the exercise of the same reason, judgment, and controlling mental power, that is required of a man in perfect mental health."(fn33)

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III. VOLUNTARY INTOXICATION DEFENSE BACKGROUND

A. Voluntary Intoxication Defense Generally

In contrast to insanity, early English common law did not allow a defendant's voluntary intoxication at the time of the alleged criminal act to mitigate his criminal culpability.(fn34) Voluntary intoxication was instead sometimes treated as an aggravation of the offense(fn35) and was not allowed as evidence to prove that the defendant did not have the mens rea required for the crime charged.(fn36) Sir Edward Coke...