The Elizabeth Smart Verdict

The Elizabeth Smart Verdict

The Elizabeth Smart Verdict

The XX Factor
What Women Really Think
Dec. 10 2010 1:55 PM

The Elizabeth Smart Verdict

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Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Brian David Mitchell probably was delusional, psychotic, and a paranoid schizophrenic when he kidnapped Elizabeth Smart, as psychiatrists testifed for the defense. How to square this with the jury's rejection of the defense's argument that he was not guilty by reason of insanity, in the  verdict today convicting Mitchell ?

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"An insanity defense is designed by Congress to be a very, very difficult thing to prove," assistant federal defender Robert Steele told the jurors. "I have to convince you by clear and convincing evidence there's a high probability that he has a severe mental illness. I have to convince you as a result he was not able to understand what he was doing, or what was wrong." In other words, it is not nearly enough to be diagnosed with a serious mental illness. If you are being prosecuted in federal court, your lawyers also have to show that you are so unhinged and deranged that you didn't understand that the crime you were committing was wrong. This is the s tandard Congress adopted after John Hinckley was acquitted by reasons of insanity for the shooting of President Ronald Reagan. After Hinckley's trial, raising the bar for the insanity defense became a rallying cry: It didn't matter that the defense succeeds in one-quarter of 1 percent of cases, even though more than 10 percent of the prison population is mentally ill on any given day. Nor does it bother the courts or lawmakers that the federal rule, which is similar to the standard in many states, looks a lot like the old 19 th -century M'Naghten test (also adopted, at Queen Victoria's behest, in the wake of a political shooting, of the secretary of the British prime minister).

There are more forgiving ways to think about mental illness and criminal blameworthiness, but they have not proved popular. In 1954, my grandfather, David Bazelon, who was a judge on the D.C. Circuit, reversed the conviction of a housebreaker named Monte Durham and in the process  adopted a relatively broad test for insanity that comes from New Hampshire: An "accused is not criminally responsible if his unlawful act was the product of mental disease or some mental defect." The idea was to expand the scope of psychiatric testimony beyond whether a defendant could tell right from wrong to the full extent of his mental illness. As I wrote about  here , my grandfather had faith in psychiatry and thought experts would be able to say with certainty whether a criminal act had medical roots. They weren't. Psychiatrists for the prosecution and the defense regularly split over whether a defendant's mental illness caused him to commit his crime. In 1972, the D.C. Circuit gave up on the  Durham test and my grandfather  decried the warring experts . He wanted psychiatrists to go on offering diagnoses and descriptions of mental illness. But he also wanted the jury to understand that no one has a "meaningful answer" to whether a person's craziness causes him to commit a crime. The court should "tell the truth," he wrote, "that the jury, not the experts, must judge the defendant's blameworthiness" and decide simply "whether it would be just to hold the defendant responsible for his action."

Did Brian David Mitchell's mental illness cause him to kidnap Elizabeth Smart, take her as his second wife, and rape her almost daily for nine months? He said that God had commanded him to do so. If he was sincere in that belief, is that reason not to hold him criminally responsible? Mitchell's case blurs religious delusion and more garden variety mental illness. Hearing about how deliberate he was in taking Smart from her home and leading her around for months, it's hard not to wonder if now he's faking it. And frankly, the damage Mitchell did to Smart is so monstrous that it is hard to care why he did what he did. This, of course, is why we have made the insanity defense so very hard to prove. We don't really want to send people like Mitchell to a mental hospital instead of to prison. And we wouldn't really want to let him go if psychiatrists were to find the right meds for him and decide that his his schizophrenia was under control.

Instead, Mitchell will rot in prison, and we have to hope this will give Smart some relief. "I felt that because of what he had done to me, I was marked," she testified. "I wasn't the same. My personal value had dropped. I was nothing. Another person could never love me." Also, "I felt like I had a burden the size of a mountain to carry around with me the rest of my life." Most people with mental illness hurt no one, but Mitchell is the terrible, frightening exception.

Photograph of Elizabeth Smart by Frazer Harrison for Getty Images.