Stop juries from practicing medicine.

Stop juries from practicing medicine.

Stop juries from practicing medicine.

The law, lawyers, and the court.
Nov. 18 2003 2:32 PM

Nuts to Whom?

The insanity defense is crazy.

Photograph of Lee Malvo.
Does Malvo's defense make sense?

The jury in the trial of accused D.C.-area sniper John A. Muhammad has returned multiple guilty verdicts. The trial of his alleged accomplice, teenager Lee Malvo, is now under way. The prosecution of the first case is essentially the defense in the second: that Malvo was merely following the demented orders of his father figure, Muhammad. To get that defense before the jury, Malvo is pleading not guilty by reason of insanity. The very notion of a teenager crouched in the trunk of a car assassinating people willy-nilly does seem crazed on its face. But Malvo's courtroom tack has provoked the predictable outrage engendered by every attempt at the insanity plea (with Dennis Miller's adolescent blather leading the pack.)

Invocations of the insanity defense often pique the public because of a widespread misperception that the plea offers an opportunity to get away with murder. Such fears are almost completely groundless. Yet they've already led to the intellectually dishonest construct of "guilty but insane" pleas passed by legislatures in a number of states. These hybrid pleas promote a beguiling oversimplification of how society should apportion blame. Bright lines are often unavoidable in the law, but the precision of modern psychiatry demands that we stop asking juries to make medical determinations of insanity once and for all.

Malvo's plea is closer to that of Patty Hearst, the heiress kidnapped in the 1970s who took up bank robbery with her captors, than that of Jeffrey Dahmer, the cannibalistic mass murderer, or that of Andrea Yates, the postpartum depressive who drowned her five kids. Like Hearst, Malvo claims he was brainwashed, in his case by the older Muhammad. Juries typically put more stock in the concept of brainwashing than do members of the psychiatric field. Still, the jurors might prove tough to persuade in this case, if only because polls have shown that verdicts are more conditioned by jurors' visceral fear of the defendant than by their understanding of insanity's legal contours. And there's no question that Malvo's said some chilling stuff when interrogated about his part in the killing spree. So, Malvo now faces a two-part challenge: First, prove he was programmed into this serial monstrosity; second, evoke the jury's pity, or at least neutralize its terror of him.

The woolly-headed denunciations of the insanity defense are actually far more common than their invocation by criminal defendants. A reputable study funded by the National Institute of Mental Health in the early 1990s found this defense used in less than 1 percent of a representative sampling, with only one-quarter of those pleas argued successfully. (Hearst, Dahmer, Yates, and even the Unabomber all failed with their insanity pleas, for example.) And even when such pleas do work, they almost never amount to a "get out of jail free" card. Studies show that an insanity pleader's average stay in a mental institution exceeds the average sentence served by those criminally convicted.

Prior to the 19th century, guilt was more frequently judged according to causation than intent. If your cart ran over my foot, it didn't matter whether you meant to do it or not. You were adjudged blameworthy. As an appreciation of criminal motivation took hold, however, a door was opened to a greater variety of defenses. In 1843, the modern insanity defense was born after a Scottish psycho named Daniel M'Naughton tried to shoot British Prime Minister Sir Robert Peel, killing his secretary instead. A jury was persuaded by the testimony of various psychiatrists who said M'Naughton was delusional. The next year, a panel of judges created the standard that's been largely used in America ever since—that a defendant is not guilty if he or she didn't know what they were doing or didn't know it was wrong. (Competence to stand trial is weighed separately, because the defendant's mental state may have changed one way or the other since commission of the offense.)

Seems fair. But after John Hinckley was acquitted by reason of insanity in 1982—because he had shot President Reagan in an effort to impress actress Jodie Foster (a motivation that Dennis Miller would no doubt find squarely within the bounds of sanity), various lawmakers started twitching. Reactionaries essentially equated insanity pleas with Twinkie defenses, and they wanted their constituents to know they weren't going to stand for any mollycoddling of criminals. So, many states passed statutes that created pleas of "guilty but mentally ill." Under such systems the deranged, if deemed guilty, are incarcerated in prisons with "sane" inmates (though they may be accorded special pharmaceutical arrangements). Failing to differentiate these populations is like treating all illnesses with a blanket quarantine. Whether any cures are possible is still an open question, of course, but one we're much less likely to answer via unvariegated warehousing.

It was society's previous failure to think through this issue that made the system susceptible to such ineffectual changes. The "guilty but mentally ill" plea represents an ill-advised lurch toward a standard that feels both righteous and firm. But out of an understandable desire to heighten accountability came a logical absurdity: You're guilty—but you're not. You are sick and thus not wholly accountable, yet you are treated exactly the same as the guilty. The mutual contradiction inherent in such a construct takes the "oxy" out of oxymoronic.

Do the semantics of all this really matter for purposes of our criminal justice system? If the goal is to protect us against violent perps, does it make a difference whether we call them nuts or no-good? It might. A recent study by Human Rights Watch concluded that as many as one in five of the 2.1 million Americans in jail and prison are seriously mentally ill. That's roughly five times the number of people in mental hospitals. The far-ranging lack of appropriate therapy can hardly be reducing recidivism, and it certainly carries no deterrence for mentally ill criminals. It also fails to meet the retributive goal of reserving punishment for the guilty.

One modest solution? The system should separate medical diagnoses from legal judgments. We should employ disinterested experts—appointed by the court, rather than hired by otherwise appropriately adversarial players—to address such questions empirically, as opposed to strategically. Insanity has historically been a legal, not medical, term. Junk it. If a defendant claims mental illness, better to let a panel of psychiatric professionals parse the severity of any condition than leave it to the vicissitudes of a jury. (Defendants need not waive right to trial: If they are determined to be sane, the fact-finding would go forward; if not, they could reach a plea deal based on the medical panel's finding.)

Juries are impaneled to try facts. Judges are responsible for interpreting the law. A jury shouldn't diagnose Lee Malvo's maladies (or lack thereof), any more than it should rule on evidentiary admissibility or perform tonsillectomies. If we lock up violent offenders without understanding why they did what they did, we vitiate the meaning of retribution, which society demands. We also mitigate the possibility of rehabilitation, which basic humanism requires. We can, of course, choose to continue ignoring this problem, locking up more and more insane defendants while treating them less and less.

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But that way madness lies.

Dirk Olin is director of the Institute for Judicial Studies and editor of JudicialReports.com.