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We Asked Three Experts to Discuss the Role of Criminal Intent and Insanity in Our Legal System

In the wake of last month's deadly shooting in Parkland, Pacific Standard talked to a few leading scholars on how the insanity defense ought to be used in the courtroom.
Memorials are seen on a fence surrounding Marjory Stoneman Douglas High School in Parkland, Florida, on February 21st, 2018.

Memorials are seen on a fence surrounding Marjory Stoneman Douglas High School in Parkland, Florida, on February 21st, 2018.

Following a shooting that left 17 dead last month at Marjory Stoneman Douglas High School in Parkland, Florida, there's been some debate in legal circles around whether the accused shooter, Nikolas Cruz, would plead not guilty by reason of insanity. Looking at possible paths for Cruz's legal defense, NBC analysts highlighted the "huge gamble" of the insanity defense, "despite its depiction in popular culture"; in order to plea insanity in a case, a defendant must prove that, "at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts."

The specific guidelines to qualify for the offense limit the number of times the insanity defense is used and successfully plead in cases, contrary to public perception: The insanity defense is used in fewer than 1 percent of all cases, and only about a quarter of those cases are successful. Furthermore, studies show defendants found not guilty by reason of insanity "are likely to spend as much or more time confined in a psychiatric institution as they would have if convicted and sentenced to jail or prison for the same crime," according to the American Psychiatric Association.

There have been a handful of notorious criminal cases that incorporated the insanity defense in some way. Some of them have been successful: In 1981, a judge acquitted John Hinckley Jr., who attempted to assassinate former President Ronald Reagan, on reasons of insanity. (Hinckley was sentenced to 35 years in a psychiatric hospital.) Others fared a different fate: In 2015, a judge found Colorado shooter James Holmes guilty of first-degree murder, rejecting his plea of "not guilty by reason of insanity," stating "it is the court's intention that the defendant never set foot in free society again," after imposing the sentence.

At the basis of the insanity defense lays the question of culpability and competency: Does the individual's cognitive ability interfere with mens rea, the intent behind a committed act? Judges must evaluate and decide if the defendant's mental state prohibited them from understanding the consequences of one's actions at the time of the event and the "wrongfulness" of one's actions. The definition of insanity varies from state to state for those who offer the insanity plea; Kansas, Montana, Idaho, and Utah do not allow the use of the insanity defense.

What does it mean for the severely mentally ill to have the option to plead insanity? How should the insanity defense be applied in court? Who is acquitted and who isn't? What happens once they are acquitted? What does the use of the insanity defense suggest about the intersection of the legal system in the United States and mental-health infrastructure in communities?

For some insights into these controversial questions, Pacific Standard spoke to three experts, each of whom have unique opinions and expertise on different areas of law that interact with the insanity defense to offer reasoning behind some stances within the debate:

  • Michael Perlin, a professor of law at New York Law School and founding director of the school's International Mental Disability Law Reform Project in its Justice Action Center.
  • Camille LaCroix, a forensic psychiatrist with the Forensic Psychiatry Services of Idaho. LaCroix is involved in an initiative between the American Bar Association and the American Civil Liberties Union to lobby for a law in Idaho to ban the death penalty for the mentally ill.
  • Christopher Slobogin, director of the Criminal Justice Program at Vanderbilt Law School.

One common theme throughout the conversations: While there are no simple answers to these questions, it's clear the application of the defense is hard to discuss without talking about the larger intersection of mental illness and the U.S. legal system.


On How the Insanity Defense Should Be Used in Law:

Slobogin: The current insanity defense is way too broad; we should abolish the insanity defense as it currently framed. I definitely think that mental illness should be relevant to culpability, but it should be relevant in the same way any other cause of inability to intend ones' acts or belief in the justification of one's acts.

So in other words, if mental illness causes delusions and hallucinations that make a person believe they're being attacked or that the person they're killing is the devil, then they should have a defense, even if none of the beliefs they have are accurate. I don't think we should get rid of mental illness as a defense. We just need to limit the situations that mental illness is a defense in the same way we would give a defense to a person who's not mentally ill and mistaking belief about what's going on.

LaCroix: There is no benefit of not having an insanity defense. Not having an insanity defense violates defendants' rights. The fundamental fairness of our country is based on the concept that you will not be treated differently than other people. It's a basic tenant of common law going back to early British law that you shall not be held responsible for something if you didn't understand that you committed it.

Perlin: The law presumes we all have free will, whether that's true or not is a very difficult question to answer. But we presume that people in fact are "sane." Psychiatrists or mental-health professionals haven't used the word "sane" in years as a medical term. We believe, in those jurisdictions that have the insanity defense, that there are some people, a very small micro universe of people, who should not be deemed responsible because of their mental status. I think that makes sense. If somebody commits an act that would be a crime, but for their mental state, that it makes much more sense to treat them as we treat them through the insanity defense.

Any mature system of criminal justice must acknowledge that some people are not responsible for what they do because of serious mental illness. To punish these people the same way that we punish people who act rationally and responsibly really makes a mockery of the whole criminal justice system.

On the Public Misconceptions of the Insanity Defense:

Perlin: There's half a dozen that have to be all of that together. It was clear to me, as someone who has represented people in insanity defense trials and people who had been found insane, that the public was just dead wrong about everything that they perceived about insanity defendants in terms of how often it's plead, the extent to which it's successful, what the penalty is when someone pleads it and the number of people who are faking it. I began to realize that "sanism" is really at the root of that.

Slobogin: It perpetuates the myth that most people with serious mental illness are dangerous. I think being called criminally insane is probably the worst thing you could be called—it's worse than being called criminal, and it's worse than being called insane or mentally ill. If we treat everyone the same way, it wouldn't make illness a special defense and result in the stigmatization of the mentally ill.

Nikolas Cruz, pictured here at Broward County Jail in Ft. Lauderdale, Florida, on February 15th, 2018.

Nikolas Cruz, pictured here at Broward County Jail in Ft. Lauderdale, Florida, on February 15th, 2018.

On How the Insanity Defense Trickles Down to the Local and Community Level:

Perlin: There is a right to continuity of care and our failure to provide this continuity of care is one of the reasons why we have these problems. By continuing to arrest people, and for nuisance crimes, the police put these people in this criminal world cycle. These people wouldn't be there if they were treated effectively either in hospitals or in community settings. By the time we get there, it's almost too late. When people are arrested and are on this repeat cycle of street to jail to hospital to street, then we are setting all of this in motion.

LaCroix: [Idaho's] insanity defense was repealed at the time when Hinckley shot Reagan. At the time they thought it was the thing to do, so we're behind by several decades and our legal system and our mental-health system both need to be upgraded badly. Public defenders have attempted to get cases with very clear severe mental illness, potentially capital cases, and defendants to the Supreme Court for appellate level consideration and Supreme Court consideration to overturn the lack of insanity defense in Idaho. They will continue to do that but without a case that can go all the way through the legal system and to the top, we're not going to get that reversed unfortunately.

The severe mental illness exemption is intended, while the death penalty still exists in our country, to assist in further identifying those individuals with mental illness so that we don't end up using a lot of resources to help prosecute individuals who would be better served getting mental-health resources in our system.

We have a society that is extremely apt to consider there is still great stigma around mental illness and lack of understanding and with all of these school shootings, it's just a very challenging time to think about things in our society.

On How the Insanity Defense Relates to Larger Community Mental-Health Infrastructure:

Slobogin: We need treatment for people with mental problems, but the insanity defense is not a way to go about getting treatment.

In a lot of states, sentencing is not based just on culpability or blame-worthiness, but also based on risk. In other words, is the person dangerous? In those states, it's a little hard to know what to do with mental illness and it mitigates culpability if the person is a blameworthy and arguably non-mentally ill person. How do you define insanity? If you have an insanity defense, it doesn't mean that they walk. That needs to be considered too.

LaCroix: The biggest implication of not having the insanity defense is that you don't get the infrastructure in the mental-health system that you need. Those individuals (mind you, only a small percentage of defendants would qualify for the insanity defense) require a sentence that puts them into a forensic mental-health hospital. So if you don't have an insanity defense, you don't have that type of institution. And you don't have conditional release and probational type of circumstances for those individuals when they get released.

So it just creates a merry-go-round for folks who are committing lesser crimes. So if we don't have good mental-health structure in the community, those individuals just circle around getting in trouble for petty things, ending up in jail; when you're in jail for a brief amount of time you might not get your medication started so you get tossed back out into the community. It creates kind of a vicious cycle. So in states without the insanity defense, you end up with a very problematic cycle in and out of the legal system for the seriously mentally ill.

You have to be very careful. As a psychiatrist, one of my main jobs is advocating for a very underserved population. We have already protected the intellectually disabled from the death penalty. We've already protected adolescents from being executed.

This is the next population that needs to be protected and that strongest misconception is the stigma of mental illness. It is a slippery slope.

Perlin: The vast majority of people who commit crimes with mental illness go to prison and they're treated terribly in prison; they're brutalized, put in solitary confinement much more than other people, assaulted much more than other people and treated terribly by other prisoners and by guards. When police continue to arrest people for these nuisance crimes it puts them in this kind this criminal-world cycle.

These interviews have been edited for length and clarity.