The History of the Insanity Defense

The American criminal justice system has applied laws regarding insanity because of the fundamental belief that a civilized society should not punish those who are incapable of justifying their actions[1]. For example, a person can commit a crime, but if that person truly is unaware of that their actions are wrong or cannot control them; they should not be punished the same way a person who breaks the law knowingly is. There is a section of Plato’s Laws that specifically says “that if a criminal defendant is senile, a child, or proven insane, he should not be responsible for no more than the payment of civil damages, ‘except that if he killed someone and his hands are polluted by murder, he must depart to a place in another country and live there in exile for a year’ and Marcus Aurelius is credited with the maxim that "madness is its own sole punishment.[2]” Both England and the United States have had a mixed relationship with the insanity defense and have always attempted to change the law slightly to be more precise.

In the 16th century, juries were granted the power and responsibility not only to weigh the facts at a trial but also to arrive at a verdict. However, the worry that twelve ordinary citizens would "run wild with their uncontrolled sense of justice[3]” so the king and his government created boundaries. The king and his government felt that “members of the jury did not have the special skills and training that I need to make a rational decision about the kind of disputes which they are contracted[4] ”Fact" and "law" emerged as two distinct entities: "jurors were entitled to weigh the facts, but a judge would tell them the law stipulating what was or was not a fact in the first place, and whether and how they should weigh it. Insanity, for example, might excuse from guilt, but not any form of insanity.[5]" By the late 17th century,  the insanity defense was firmly set in place. "It was no longer merely an exemption from law based upon sympathy and an intuitive assessment of the prisoner's mental state. It was part of the law, a system of criminal law that required guilty mind for conviction must necessarily acquit those who were out of their minds, who were inadvertently led into crime by the most innocent of intentions.[6]”

Insanity, in legal terms, refers to the mental state of the defendant at the time that a crime was committed[7]. In the American criminal justice system, citizens have the right to plead insanity if they are declared not guilty by reason of insanity at the time of the incident. Insanity differs from being competent to stand trial because you can be insane but still be able to understand the proceedings that are occurring. Competency to stand trial strictly refers to the defendant’s legal capacity at the of the trial or plea bargain[8]. . For an act to be criminal, not only must it break the law, but a guilty mind must accompany it. Specifically, Mens rea is “the mental state of knowing the nature and quality of a forbidden act”[9], or a guilty mind.

As the majority of our laws, the insanity defense began in England. The most common definition of insanity up until 1843 was determined by the "knowledge of good and evil," brought from the Old Testament and English theory of law.[10] In 1843, an Englishman named Daniel M’Naghten shot and killed who he thought was the British Prime Minister, Robert Peel. However, instead of shooting the prime minister, M'Naghten shot his private secretary. M'Naghten was suffering from paranoid delusions and believed that Peel was part of a conspiracy against him. Months before the killing, M’Naghten was evicted, complained that spies were following him, so he traveled throughout Europe trying to escape from the spies, but that did not work. The only solution was to kill Peel so he could be free from the spies[11].

Before the shooting, M’Naghten tried to escape his delusions by packing all his things and traveling throughout Europe. That did not help, so he went back to England and stalked the Prime Minister and shot the man he believed to be Peel[12]. Daniel M'Naghten was apprehended and charged with murder. During the trial, his defense attorney claimed he was insane at the time of the shooting. The prosecutor argued that M’Naghten was sane by “demonstrating that the prisoner had behaved rationally – that is a sane man had chosen to murder Mr. Drummond, he might have done it the same way.[13]" The defense countered the prosecution's argument with a quotation from Roscoe's Criminal Evidence that pointed out that the "issue could be much more subtle than a simple question of awareness of right and wrong[14].” The judge and the jurors all agreed he was insane, so he was committed to Broadmoor Asylum for the Insane where he spent the rest of his life. As a result, the public was not happy with this outcome, and neither was the Queen of England. [15] The judge decided that if in the delusions, the person kills in self-defense, then he is exempt from punishment. However, if it is a revenge killing he is still liable and can be punished, “when faced with partial insanity, the court must adjourn from the real world, reconvene within the lunatic's delusion, and decree that the law of England extends to this crazy realm[16].”

As a result of Daniel M’Naghten’s trial, the M’Naghten rule was created. The M’Naghten rule became the standard for defining insanity in both Great Britain and the United States. This rule "' excuses' criminal conduct if the defendant, as a result of a 'disease of the mind,' (1) did not know what he was doing, or (2) did not know what he was doing was wrong[17].” This standard is used in 29 states as well as in the federal jurisdiction[18].

People criticized the M’Naghten rule because “cognitive focus (knowing wrongfulness) is too limiting and does not allow consideration of motivational and other influences affecting behavior[19]”. The problem with the insanity defense is that there is not a standardized answer, and it varies from state to state[20]. Two views of humanity emerged; the legal and the scientific. There was not enough common ground between the legal and the scientific to conclude. Psychiatrists claimed that mental defects stemmed from organic, hereditary, and chemical disorders[21]. The public felt that the M’Naghten rule was too liberal and that the entire insanity defense was a sham[22]. Famous author, Mark Twain wrote, "Insanity is on the increase in the world, and crime is dying out"[23].

In 1882, Maclean, an Englishman who was declared insane by the age of eight, attempted to kill the Queen and was found not guilty. The Queen was outraged by this verdict and called for a change in the law[24]. The Queen stated, “insane he may have been, but not guilty he certainly was not[25].” As a direct result of the Queen calling for a change, Parliament passed the Trial of Lunatics Act of 1883, “which abolished the verdict of not guilty by reason of insanity, and stipulated that in such cases ‘the jury shall return a special verdict to the effect that the accused was guilty of the act or omission charged against him, but was insane…at the time when he did the act or made the omission’[26]”

The next attempt to abolish the insanity defense was in the United States after the acquittal of Harry K. Thaw. Harry Thaw was a millionaire who, in 1906, shot Stanford White during a concert in New York City. White had been involved with his wife, and Thaw hated him.[27] After he was arrested, Thaw pleaded not guilty. During the first trial, the jury was deadlocked, and when he was tried for the second time, he was acquitted by reason of insanity in 1908. He was sent to Matteawan Asylum for the Criminally Insane. Initially, Thaw's acquittal was met with approval, but his behavior after being sent to the asylum made the public's opinion shift[28]. Thaw continued to leave the asylum weekly and wrote writs to expedite his release.

As a direct result of Thaw, the New York State Bar Association recommended that the law limit an insanity acquitee’s right to file writs and that they should remain hospitalized until transferred to prison unless pardoned because there was a chance that Thaw could be released[29]. This started a domino effect of reformations in the insanity defense. In the same year, Washington abolished its insanity defense. The new law stated that "the defendant could no longer be acquitted by reason of insanity, but if, following conviction, the court deemed he satisfied the M’Naghten criteria it could at its discretion order him committed to a state hospital[30].” The Mississippi "Laws of 1928" mandated that insanity should be no defense, though mental state could be called into consideration during sentencing[31].

In California, the Commission for the Reform of Criminal Procedure was created to help the prosecution. The commissioners were not pleased about the amount of background information defendants were allowed to introduce to the court, which is not permitted in ordinary proceedings[32]. The commissioners believed that allowing all this kind of information allowed the defense to play on the sympathies of the jurors and confuse the question of guilt or innocence[33]. The commissioner proposed a solution that was adopted. California split insanity trials into two separate trials. One trial was to decide guilt or innocence, and if the defendant was acquitted there, the defendant was free. If they were found guilty, the second trial was to determine the defendant's mental state. If they were found sane, they would go to prison, or if found insane, they would be committed to a mental hospital[34]. “Felstead v. Rex in England and Strasburg v. State in America had held firmly a policy that mental illness could not be completely divorced from the issue of criminal responsibility because guilt and legal insanity could not coexist[35].”

The Dual plea stood until 1949 with the case People v. Wells. Wesley Robert Wells was serving a life sentence in Folsom State Prison, California, after assaulting a guard. The verdict was supposed to be death. The guilt phase of the trial excluded Wells, "low threshold of fear[36]", he was convicted and sentenced to death. The verdict seemed unjust to the public, and it excluded his state of mind during the guilt phase of the trial. After this case, justices allowed "psychiatric testimony to be "admissible during the guilt phase of the trial, but it would be aimed toward a different issue than legal insanity" [37]. "Identifying insanity with a lack of mens rea suggested that the sane and the insane criminal merely lay at different points on a continuous spectrum of legal responsibility -- an implication quite far removed from the traditional view[38]"

In Michigan, during the year 1970, James Chester McQuillan was charged with attempted rape. He was acquitted by reason of insanity and sent to Ionia State Hospital until he was deemed sane and no longer a threat. He was diagnosed with paranoid schizophrenia and was discharged from the army with a 100% psychological disability. He did not believe he should be hospitalized indefinitely and thought he was not receiving proper rehabilitative treatment. McQuillan was released after he was able to get a doctor to examine him because while he did show “personality problems” there was not sufficient mental illness for him to continue his stay at the hospital[39].  After this, Bolton v. Harris determined that those not guilty by reason of insanity (NGRI) could only be held for a limited amount of time for examination and observation and must have the same protections, rights, and release provisions as anyone else[40]

Another main case regarding the insanity defense is the McGee trial. In 1973, John Bernard McGee, a notorious murderer, was acquitted because the majority of the jurors believed McGee was dangerous but not that it was because of mental disease. If he was not believed to be dangerous and mentally ill, he had to be released and the next month killed again[41]. Forensic Center Director Ames Robey began to try and find a solution. The biggest problem was that the verdict was arrived at with the jurors misunderstanding the insanity rule, or they believed an “insanity acquittal was the best way to guarantee that the defendant would receive treatment within a secure facility”[42]. Under Robey’s proposal came the “Guilty but Mentally Ill (GBMI)” verdict[43]. A defendant is GBMI if the defendant was guilty of an offense, was mentally ill at the time of the crime, and was not legally insane at the time of that offense. When the defendant arrived at the prison, they would be notified of their GBMI status, and staff would know that this was a person who needed treatment and that this status should be taken into consideration during parole hearings[44].  Michigan adopted the GBMI in 1975, Indiana followed in 1980, and Illinois in 1981[45].

The purpose of the GBMI verdict was to deter juries from making errors when giving their verdict and to send those who are considered "dangerous borderline defendants" to jail[46]. Not everyone agreed with this new verdict. Wayne State University law professor Ralph Slovenko stated that “if a jury correctly understands and applies the law, “guilty but mentally ill is just another way of saying ‘guilty’ and that ‘mentally ill’ carries little weight and means the same as 'guilty but a headache would'[47] Dr. John Prelesnik, superintendent of the Reception and Guidance Center at Jackson State Penitentiary, sees everyone who enters the Michigan state prison and says that GBMI does not change anything, he received 200 GBMI by 1982. Half of those were mentally ill, and of them, only 25 were considered in need of treatment[48]. "The failure of GBMI to reduce the number of acquittals seems to indicate that judges and juries have always adequately distinguished between mental illness that negates guilt and that which does not and that there is, at least under the particular insanity test uses, a relatively constant set of defendants whom they will not hold responsible. If there are errors, GBMI does not correct them[49]”

After John Hinkley Jr. attempted to assassinate Ronald Reagan's trial, there were many efforts made to reduce the number of acquittals by narrowing the criteria for insanity, especially at the federal level.[50] U.S Congress enacted the Insanity Defense Reform Act (IDRA)[51] The radical solution was to abolish the insanity defense completely. With this idea came the mens rea test. “A mentally disturbed defendant could bring in psychiatric witnesses only to litigate the mens rea or intent elements of the crime, which require, for example, that an action has been done "knowingly," "negligently" or "with intent to" do something[52].” The whole belief system behind this test was that it would be more restrictive, and there would be less psychology behind it. This law did not abolish the insanity defense, but it did change it.

Montana was the first state to abolish the insanity defense in 1979. Their reasoning was

that the insanity defense gave mental illness status in the criminal justice system that it did not properly deserve and “introduced vague and often meaningless psychological discussions into what was essentially a moral and social issue”[53] Opponents of the Montana bill complained that one should not convict a defendant who did not know what they were doing, and the response was that no one would convict someone who obviously did not know what they were doing.[54] Today in Montana, a defendant can only invoke Insanity plea if he was able to act “knowingly” or “purposefully”[55].

 Under a mens rea formulation, "mental disease or defect would be no defense if the defendant knew he was shooting at a human being to kill it -- even if the defendant acted out of an irrational or insane belief. …...it would eliminate entirely as a test whether a defendant knew his actions were morally wrong and whether he could control his behavior[56].” Abolishing the insanity defense is a main fear psychiatrists have. “Mens rea provided the logical and constitutional justification for the existence of an acquittal due to severe mental illness, but mens rea terms did not need to accommodate the unusual psychological concepts raised in connection with this issue because a separate insanity defense was there -- However wrong or misinterpreted they were, they were there for the specific purpose of determining mental responsibility[57].”

Along with the M’Naghten rule, psychologists also use the Brawner rule. The Brawner rule states that a defendant is not responsible for criminal conduct if he, “at the time of such conduct as a result of mental disease or defect, lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirement of the law[58]". This rule allows the judges and the jurors to consider whether the defendant had the ability to understand their behavior and act in a lawful way. In 2011, 18 states adopted the Brawner rule.

The Brawner test differs from the M’Naghten rule in three substantial ways: “By using the term appreciate, it incorporates the emotional as well as the cognitive determinates of criminal actions, does not require that offenders exhibit a total lack of appreciation for the nature of their conduct, but only a lack of "substantial capacity" Includes both a cognition element and a volitional element, making defendants inability to control their actions a sufficient criterion but itself for insanity[59].”

A common misconception about the insanity defense is that it is commonly used. Americans believe that a large number of dangerous criminal defendants use the insanity defense after they are found NGRI; they are released back into society after a short period of time. "A survey of the use of and the insanity defense in eight states between 1976 and 1985 found that although the public estimated that the insanity defense was used in 37% of the cases, the actual rate was only .9%[60]". For example, Jack Ruby, John F. Kennedy’s assassin, Robert F. Kennedy’s assassin, John Wayne Gacy, and Jeffrey Dahmer are all notorious killers who attempted to use the insanity defense but failed[61].

One factor that contributes to the public perception of the commonality of the insanity defense is that the cases where there is an insanity acquittal tend to be highly publicized[62]. The public also believes that the insanity defense is the rich persons' defense, but statistical data contradicts this argument[63].

The insanity defense has been a topic of debate and great reforms since its existence. The psychology of it and legal terminology are difficult to combine. Lack of public education of the insanity defense will continue to lead to misconceptions of the defense. The M'Naghten rule, the Brawner rule, and the mens rea test are all attempts to make the insanity defense more precise.

Bibliography

• Greene, Edie, Kirk Heilbrun, and Lawrence S. Wrightsman. Wrightsmans Psychology and the Legal System. Boston, MA, USA: Cengage, 2019.
• Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P. 153-154
• Simon, R. M. The Jury and the Defense of Insanity. Boston: Little, Brown, 1967.

[1] Greene, Edie, Kirk Heilbrun, and Lawrence S. Wrightsman. Wrightsmans Psychology and the Legal System. Boston, MA, USA: Cengage, 2019.

[2] Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P.3

[3] “Ibid”. P.5

[4]  Simon, R. M. The Jury and the Defense of Insanity. Boston: Little, Brown, 1967.

[5] Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P.6

[6] “Ibid”. P. 8

[7] Greene, Edie, Kirk Heilbrun, and Lawrence S. Wrightsman. Wrightsmans Psychology and the Legal System. Boston, MA, USA: Cengage, 2019. P.226

[8] “Ibid” P.226

[9] Greene, Edie, Kirk Heilbrun, and Lawrence S. Wrightsman. Wrightsmans Psychology and the Legal System. Boston, MA, USA: Cengage, 2019.

[10] Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985.

[11] Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P.27-29

[12] Greene, Edie, Kirk Heilbrun, and Lawrence S. Wrightsman. Wrightsmans Psychology and the Legal System. Boston, MA, USA: Cengage, 2019.

[13]  Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P.25

[14] Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P.26

[15] Greene, Edie, Kirk Heilbrun, and Lawrence S. Wrightsman. Wrightsmans Psychology and the Legal System. Boston, MA, USA: Cengage, 2019.

[16] Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P.33

[17] Greene, Edie, Kirk Heilbrun, and Lawrence S. Wrightsman. Wrightsmans Psychology and the Legal System. Boston, MA, USA: Cengage, 2019. P.25

[18] “Ibid” p.25

[19] “Ibid” p. 25

[20] “Ibid” p. 26

[21]. Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P.52

[22] Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P.53

[23] “Ibid” P.54

[24] “Ibid” P.57

[25] “Ibid” P.57

[26] “Ibid” P. 57

[27] “Ibid” P. 58

[28] “Ibid” P.59

[29]. Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P.60

[30] “Ibid” P. 61

[31] “Ibid” P. 62

[32] Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P. 65

[33] Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P. 65

[34] Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P. 65

[35] Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P. 66

[36] Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P. 69

[37] Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P. 70

[38] Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P. 72

[39] Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P. 133

[40] Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P. 134

[41]. “Ibid” P. 137

[42] “Ibid” P. 138

[43] “Ibid” P. 138

[44] “Ibid” P. 139

[45] “Ibid” P. 140

[46] “Ibid” P. 140

[47]." Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P. 144

[48] “Ibid” P. 145

[49] “Ibid” P. 145-146

[50] “Ibid” P. 147

[51] Greene, Edie, Kirk Heilbrun, and Lawrence S. Wrightsman. Wrightsmans Psychology and the Legal System. Boston, MA, USA: Cengage, 2019. P. 227

[52] Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P. 148

[53] Maeder, Thomas. Crime and Madness: the Origins and Evolution of the Insanity Defense. New York: Harper & Row, 1985. P. 149

[54] “Ibid” P. 150

[55] “Ibid” P. 150

[56] “Ibid” P. 150-151

[57] “Ibid”  P. 153-154

[58] Greene, Edie, Kirk Heilbrun, and Lawrence S. Wrightsman. Wrightsmans Psychology and the Legal System. Boston, MA, USA: Cengage, 2019. P. 227

[59] “Ibid” P. 227

[60] “Ibid” P. 231

[61] “Ibid” P. 228

[62] Greene, Edie, Kirk Heilbrun, and Lawrence S. Wrightsman. Wrightsmans Psychology and the Legal System. Boston, MA, USA: Cengage, 2019. P. 232

[63] Greene, Edie, Kirk Heilbrun, and Lawrence S. Wrightsman. Wrightsmans Psychology and the Legal System. Boston, MA, USA: Cengage, 2019. P. 232