AN INTRODUCTION TO THE MENTALLY ILL AND THE CRIMINAL JUSTICE SYSTEM

Most psychiatrists are familiar with the medicolegal issues that arise in the area of civil law, some of which are described in Chapters 84 and 86. This chapter focuses on less familiar interactions between law and psychiatry, as well as the roles psychiatrists and other mental health professionals play in the criminal justice system. Psychiatry, more so than any other medical specialty, is involved with criminal law because of (1) the relationship between mental illness and violent behavior discussed in Chapter 65; (2) ethical and legal prohibitions against mentally incompetent people standing trial, representing themselves, or being executed; and (3) societal standards that prohibit imposition of criminal responsibility on those who lack moral blameworthiness due to mental illness or developmental disabilities. The United States Supreme Court has recognized the important role of psychiatrists and other mental health professionals in criminal matters, holding that criminal defendants have a right to the assistance of a mental health professional when the mental state of the defendant is at issue, and that this assistance be paid for by the state for indigent defendants.¹

Mental health issues can arise at any point in the criminal justice process, from arrest through incarceration, often leading to an individual being moved between the criminal justice and civil mental health systems at various points in the criminal process. For example, psychiatric concerns may be raised immediately after an individual has been taken into custody, resulting in the police taking the individual directly to a psychiatric emergency department for evaluation, without arresting the individual or charging him or her with a crime. This often occurs when the police have reason to be concerned about the well-being of the individual in question; as a result, the police take the individual into protective custody. If clinicians in the emergency department decide to hospitalize the individual, thus diverting him or her into the mental health system, the criminal process may end at that point with no charges filed.

On the other hand, the police may arrest the individual on criminal charges, but bring him or her to the emergency department for a psychiatric evaluation before booking to determine if he or she can be safely taken to jail to await formal charging or arraignment. On psychiatric clearance, the criminal process would continue with the individual going to the police station for booking and then to jail until he or she is arraigned at the next available court date, often the next morning. An arraignment is a formal process at which a judge reads the charges and the defendant, represented by an attorney, enters a plea of guilty or not guilty.

If, before arraignment, the police observe additional behaviors that raise concerns about the individual’s safety or ability to participate in the criminal process, a clinician attached to the court may be asked to conduct an evaluation, or the individual may be returned to the emergency department. Except for providing emergency medical or psychiatric care, a psychiatrist should not conduct any evaluation of a criminal defendant relevant to the courts or criminal charges until the defendant has had access to an attorney or an attorney has been made available.²

At the arraignment, the prosecutor, the defense counsel, or the judge may ask that the defendant be evaluated for competency to stand trial (CST) or criminal responsibility (CR). In fact, judges have a constitutional obligation to address the issue of a defendant’s CST, at any point in the proceedings, where the evidence raises “a bona fide doubt” as to competency.³

If a CST evaluation is in order, or if there is concern about the defendant’s safety due to mental illness, he or she may be transferred to a public mental hospital for further evaluation. In many states, the referral is to a designated forensic hospital, although in other states, the defendant may be referred to a psychiatric facility that does not specialize in forensic evaluations.

The presence of significant symptoms of mental illness, before or after conviction, is no guarantee that a mentally ill individual will end up receiving treatment in a psychiatric facility rather than residing in a correctional facility, with or without adequate treatment. Indeed, correctional institutions now house more mentally ill individuals than are hospitalized in psychiatric facilities.^4–6

CRIMINAL COMPETENCIES

The modern era of criminal law began when English common law began to distinguish between civil and criminal matters.^7,8 (Common law, also referred to as case law or judge-made law, is that body of law created by courtroom decisions that then have controlling value as precedents for subsequent cases involving similar legal issues. Only cases that are decided on appeal have value as precedents; trial court decisions do not.) Then, as now, specific procedures were required to preserve the integrity, accuracy, and fairness of the criminal process. Entering of a plea by the accused was essential to start the proceedings. As of 1275, measures were in place to manage the problem of how to proceed when the defendant refused or was unable to enter a plea. According to the famed legal commentator William Blackstone, where the defendant refused to plead, it was left to the court to

If the defendant was found to be mute ex visitatione Dei (by act of God), the court would hear the case but take measures to protect the defendant. For defendants found to be “obstinately mute,” the consequences depended on the charge. If charged with high treason, the worst of crimes, muteness was considered the equivalent of confession, and the consequences were the same: judgment and execution, with forfeiture of all property to the Crown. Muteness in the face of charges of minor crimes was also held to be the equivalent of confession, and judgment was entered accordingly. As Blackstone reported, “But upon appeals or indictments for other felonies, or petit treason, he shall not be looked upon as convicted, so as to receive judgment for the felony; but shall, for his obstinacy, receive the terrible sentence of penance, or peine forte et dure.”⁹

The penance, or peine forte et dure, in 1275 involved the following:

This procedure did not consistently result in prisoners entering pleas, so by the early fourteenth century the process was modified to yield the desired end: the prisoner’s diet was reduced to “a little rotten bread” and “cloudy and stinking water” on alternate days and the defendant was “pressed with as great a weight of iron as his wretched body can bear.”¹⁰ The procedure evolved further, and in 1406, Lord Chief Justice Gascoigne sentenced two accused robbers found to be “mute of malice, to delay their death…. to have put upon them as great a weight of iron as they can bear and more…. so to lie until death.” Eventually, the procedure was handled as follows:

The motivation for refusing to enter a plea and suffering this horrendous fate can be understood as follows: those defendants who died without confessing their crime or being found guilty were not subject to forfeiture of their property, thus preserving assets for their families. Peine forte et dure was banned by case law in England in 1772, and by statute in 1827.¹⁰

Similar approaches to extracting pleadings (and confessions) were used in the English colonies of North America, most notoriously during the Salem Witch Trials. In the United States, as well as the United Kingdom and the Commonwealth countries, this brutal approach gave way to more humane procedures and recognition that justice was not served by putting on trial a person who was unable to participate in a meaningful way in his or her own defense.¹²

It is now well established in the United States that the trial of an incompetent individual is incompatible with justice and violates the constitutional guarantee of due process under law.¹² In addition to avoiding the brutality of the ancient methods, requiring that the defendant be competent to stand trial serves several purposes. These include the following: (1) the fact-finding portion of the proceedings can only be accurate if the defendant can work with his or her attorney with an understanding of the proceedings; (2) only a competent defendant can exercise the constitutional rights to a fair trial and to confront his or her accuser in a meaningful way; (3) the integrity and dignity of the legal process are preserved by ensuring that the defendant is competent to stand trial; and (4) the purposes of retribution and individual deterrence are served only if the convicted defendant was competent to stand trial.¹³

In the United States, the standard for competency to stand trial was established in Dusky v. U.S.¹⁴ Under the Dusky standard, the relevant inquiry is whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as a factual understanding of the proceedings against him.”¹⁴ When the issue of competency to stand trial is raised, the trial judge must conclude that the defendant is competent by a preponderance of the evidence, that is, that it is more likely than not that he or she meets the Dusky criteria.¹⁵

The defense of criminal charges requires numerous complex decisions. As the Supreme Court noted in Godinez v. Moran:

Interestingly, although the Godinez court delineated the important rights and decisions that defendants going to trial and pleading guilty must contemplate, the court ruled against a heightened standard for competency to plead guilty (see discussion later in this chapter).

There have been numerous efforts to define the characteristics that distinguish defendants who are competent to stand trial from those who are not. A federal district court specified the following components of CST as meeting the Dusky criteria and indicating that a defendant is competent to stand trial:

There have been attempts to quantify these criteria, so that the evaluation becomes a more objective, structured clinical assessment rather than an impressionistic evaluation.^18–20 Regardless of the assessment technique used, the threshold for finding a defendant competent to stand trial is very low, and defendants with serious symptoms of mental illness or cognitive impairment have been held competent to stand trial.¹⁵ The Supreme Court has made clear that the standard is minimal and straightforward:

Individuals with disorders such as paranoid schizophrenia, dementia, and amnesia²¹ may be found competent to stand trial, so long as they meet the minimum threshold of knowledge and awareness required in Dusky and progeny cases.^14,16

As noted earlier, judges have a constitutional obligation to address the issue of competency to stand trial, at any point in the proceedings, where the evidence raises “a bona fide doubt” as to competency.³ As a necessary condition for the criminal process to proceed, that evaluation can be carried out without the defendant’s consent.²²

In the event that a defendant is found incompetent to stand trial (IST), the proceedings are suspended in order for the defendant to be “restored to competency” as determined on subsequent assessment. The restoration process may involve both treatment of the incapacitating illness and educational efforts aimed specifically at participation in the trial process. Programs aimed at “restoring” the competency of mentally ill and mentally retarded defendants have been instituted.^23,24 Depending on the severity of the crime and the nature of the underlying illness, the charges may be dropped at this point. For example, in practice, charges of misdemeanor or nonviolent offenses may be dropped when the individual has a mental illness and is committed for further treatment.

In cases involving more serious crimes, the defendant might be committed to an inpatient psychiatric facility for treatment and restoration of competency if the defendant has a treatable mental illness that impairs his or her CST. The defendant will be reassessed for CST periodically, as required according to the statute in that jurisdiction. In Jackson v. Indiana, the Supreme Court held that defendants who have no hope of restoration of competency cannot be committed indefinitely to state psychiatric facilities unless they meet the usual civil commitment criteria and standard procedures are followed.²⁵

As noted in Chapter 84, all competent adults have a right to make their own decisions regarding medical treatment, and specific processes are used to protect the autonomy and legal rights of individuals even after they become incapacitated. Individual states may choose to provide a higher level of protection than the federal standards (see Chapter 84). The United States Supreme Court has handed down a number of decisions that set the minimum protections for individual autonomy under the United States Constitution for individuals found to be IST or to lack criminal responsibility.

In United States v. Charters, a United States Court of Appeals in 1988 addressed the issue of what procedures were necessary to protect the rights of a defendant who had been found IST and was refusing treatment with antipsychotic medication.²⁶ The court held that even though the involuntary treatment would constitute a deprivation of certain liberty interests, the defendant’s rights could be adequately protected through a process that left the decision about whether involuntary medication should be administered “to appropriate professionals exercising their specialized professional judgments rather than to traditional judicial or administrative-type adjudicative processes.”²⁶

Four years later, in 1992, the Supreme Court addressed the circumstances under which an IST defendant could be involuntarily medicated to restore his competency to stand trial in Riggins v. Nevada.²⁷ The Supreme Court held that in order for a state to impose antipsychotic medication on an objecting defendant for the purpose of rendering the defendant competent to stand trial, the state must show that the treatment is both medically necessary and appropriate.²⁷ In deciding the case, the court looked to its earlier opinion in Washington v. Harper, in which it held that a state may treat an inmate with antipsychotic medication against his will if the inmate has a serious mental illness, “is dangerous to himself or others and the treatment is in his medical interest.”²⁸

The Supreme Court in 2003 refined its holding regarding involuntary medication of IST defendants in Sell v. United States.²⁹ Dr. Sell, a dentist accused of insurance fraud and attempting to have witnesses murdered, was found to be IST. The government sought to treat him with antipsychotic medication, which he refused, claiming that he had an absolute right to refuse treatment. The court held that where a defendant is charged with nonviolent crimes, the Constitution permits the government to administer antipsychotic drugs against the defendant’s will in order to render the defendant competent to stand trial only under limited circumstances.²⁹ The court held that involuntary administration of psychotropic medication to a nonviolent IST defendant can occur only when a court determines that (1) important governmental interests are at stake; (2) the forced medication will significantly further those interests, that is, the medication is “substantially likely to render the defendant competent to stand trial and substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a defense”; (3) the involuntary treatment with medication is “necessary to further those interests and find that alternative, less intrusive treatments are unlikely to achieve substantially the same results”; and (4) administering the drugs is medically appropriate.²⁹

It should be noted that in none of these cases did the Supreme Court hold that the United States Constitution requires more than administrative proceedings before a patient can be involuntarily medicated, although appeal to the courts from the administrative decisions is not barred. This is in contrast to some state court decisions that require full adversarial proceedings before involuntary medication of IST defendants and insanity acquittees.^30,31 Overall, states differ in how they address the issue of involuntary medication of both civilly committed and IST individuals.

COMPETENCY TO PLEAD AND TO DECLINE COUNSEL

The reality of the criminal process is that many defendants do not reach trial. Instead, they plead guilty, usually in exchange for a reduced sentence through the plea-bargaining process. When a criminal defendant pleads guilty, he or she waives many important constitutionally protected rights, including the protection against self-incrimination, the right to a trial by jury, the right to confront witnesses against him or her, and the right to appeal the conviction. Against this backdrop, several landmark cases have addressed the issue of whether a separate standard for competency to plead guilty should be established.^16,32 In addition, acknowledging that the decision to waive counsel also entails the relinquishment of a constitutionally protected right, the question of whether a standard other than the CST standard applies in determining competency to waive counsel has been addressed.³³ Notwithstanding these inquiries, the Supreme Court, in the case Godinez v. Moran, made clear that it recognizes a unitary competency standard, the Dusky CST standard.¹⁶

COMPETENCY TO BE EXECUTED

Competency is also required before a person convicted of a capital crime and sentenced to death can be executed. The standard for competency to be executed is whether the condemned person has an understanding of the nature of the proceedings and can participate in the process.³⁴ Requiring competency to be executed serves several purposes: (1) it preserves the integrity of the sentencing and punishment process; (2) it ensures that the convicted individual will have the ability to contest the decision through all stages of appeal before imposition of punishment; and (3) it ensures that the deterrent function of punishment is served by punishing only those who have the requisite mental capacity.³⁴

The importance of the mental status of death row inmates and competency to be executed is reflected in a number of key United States Supreme Court cases. In the 1986 case of Ford v. Wainwright,³⁴ the court held that execution of the insane is a violation of the Eighth Amendment prohibition against cruel and unusual punishment, and that death row inmates are entitled to a full and fair hearing on the issue of competency to be executed.

Neither in Ford v. Wainwright,³⁴ nor in subsequent cases, did the Supreme Court find a blanket bar to capital punishment for the mentally retarded, and it did not do so until nearly two decades later.³⁵ In 2003, the court reversed its prior rulings on this issue and held that execution of the mentally retarded violates the Eighth Amendment.³⁶ Two years later, in Roper v. Simmons,³⁷ the court further narrowed the parameters for constitutionally permissible executions when it held that imposition of the death penalty for crimes committed when offenders were under age 18 also violated the Eighth Amendment.

The involvement of psychiatrists and other physicians in executions is controversial. The American Medical Association has taken the position that physicians should not participate in legally authorized executions.³⁸ Similarly, the American Psychiatric Association took the position in a 1990 Ethics Committee Opinion that it is unethical for a psychiatrist to participate in executions. However, debate remains regarding the morality of psychiatrists conducting competency evaluations for execution.³⁹ At a bare minimum, the prisoner must be informed of the purpose of the evaluation and the limitations on confidentiality.² Similarly, if psychiatrists become involved in the treatment of death row inmates, they must inform prisoners of their professional roles and the limits on confidentiality.

One of the more controversial roles played by psychiatrists in this area has been testimony on the issue of future dangerousness, a key element used in determining whether a convicted murderer will be sentenced to death. That issue has been the subject of a series of landmark Supreme Court cases. In Estelle v. Smith, the court held that a condemned inmate’s Fifth Amendment right to freedom from self-incrimination and his Sixth Amendment right to assistance of counsel had been denied when a psychiatrist who had examined him for competency to stand trial was allowed to testify to his dangerousness at the penalty phase and the defendant had not been informed of the purpose of the evaluation or his right to have an attorney present.⁴⁰

In Barefoot v. Estelle,⁴¹ the Supreme Court held that while a state cannot compel a defendant to submit to a psychiatric evaluation, there is no constitutional barrier to a psychiatric expert using hypothetical questions as a basis for testimony about a defendant’s dangerousness. The court specifically rejected the American Psychiatric Association’s position that dangerousness predictions are inherently unreliable and that such testimony should be excluded entirely.

Another area of controversy has been refusal of treatment by condemned prisoners who have been found incompetent to be executed. The logical outcome of successful treatment, of course, would be death. These cases present the ethical issues for treating physicians, highlighted earlier, and the legal issue of whether a condemned prisoner may be treated against his will for the purpose of restoring him to competency, thus allowing the death sentence to be carried out. In Perry v. Louisiana,⁴² the United States Supreme Court overturned the decision of the Louisiana Supreme Court, which had held that the state’s interest in rendering a death row inmate competent to be executed by involuntary administration of antipsychotic medication outweighed the inmate’s right to refuse medical treatment. Noting that in Washington v. Harper²⁸ it had included “best interests of the prisoner” among the criteria for involuntary treatment of prisoners with antipsychotic medication, the United States Supreme Court vacated the sentence and remanded the case back to the state court for reconsideration in light of Harper. On remand, the Supreme Court of Louisiana held that forced administration of antipsychotic drugs to restore prisoner’s competency to be executed violates the state constitutional right to privacy and constitutes cruel, excessive, and unusual punishment.⁴³

At this point in time, with the approval of the United States Supreme Court, those jurisdictions that use the death penalty look to psychiatrists and other mental health professionals to assess the competency of prisoners to be executed, treat their illnesses to restore them to competency, and assess dangerousness.

CRIMINAL RESPONSIBILITY

A fundamental principle of criminal justice is that individuals with severe mental illness or developmental disabilities are not to be held responsible for their otherwise criminal acts.⁴⁴ The concept itself, and the derivative question of what to do with individuals who are found not guilty by reason of insanity (NGRI), have been the subject of much debate and have generated fluctuating standards. Few activities of mental health professionals get as much media and public attention and spark as much controversy as testimony on these matters.

A detailed history of the evolution of the insanity defense is beyond the scope of this chapter, but interested readers may wish to consult the classic texts on the subject,^8,45,46 as well as some of the more modern and readily available treatises on the insanity defense.^47–49

The history of the insanity defense is the product of society’s struggles over moral responsibility, ecclesiastical influences, historical events, the nature and level of understanding of mental illness from a scientific standpoint, and public attitudes about the mentally ill.^47,50 For example, the episodic mental illness of King George III is believed to have had a major influence on the attitudes of the public, and therefore the jurors of the time,^8,47 and may have benefited some criminal defendants of the period.⁴⁷ There are numerous examples of the criminal responsibility standard being tightened after the perpetrator of a notorious crime is found NGRI, for example, James Hadfield,⁸ Daniel M’Naghten,^8,51 and John Hinckley.⁵² The modifications are such that the infamous defendant would have been found criminally responsible under the new standard.

Before turning to the insanity defense itself, an overview of the basics of criminal law and related defenses is useful. In order for an individual to be convicted of a crime, there must be a guilty act (actus reus) and guilty intent (mens rea). Mens rea is considered in both a general and specific form. In its general form, it refers to the overall capacity of an individual to form the intent to commit the crime in question and thus his or her blameworthiness or legal liability. For example, an individual who takes someone else’s automobile for his own use when directed to do so by auditory hallucinations, or who is not even aware that he is stealing a vehicle, is unlikely to be found to have had the necessary intent to be found blameworthy. In its specific or narrow form, mens rea is an element of a group of crimes referred to as specific intent crimes, for example, larceny of a motor vehicle (knowingly taking possession of property that is not your own, for your own use, and with the intent to deprive the true owner of its use) or murder.⁵³ (Under Massachusetts law, murder is defined as follows: “Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree. Murder which does not appear to be in the first degree is murder in the second degree. Petit treason shall be prosecuted and punished as murder. The degree of murder shall be found by the jury.” From MGL Ch. 265 §1.)

Beyond the obvious defenses of denying that he or she committed the act, or that no crime occurred, a criminal defendant has two broad categories of defenses available: justification and excuse.^54,55 The distinction between the two categories is not always clear; for example, the difference between self-defense (justification) and duress (excuse) is often more apparent than real.⁵⁶

LACK OF CRIMINAL RESPONSIBILITY

A criminal defendant may be found to lack criminal responsibility where the defendant was impaired in his or her ability to think or to act rationally because of some condition, for example, severe mental illness. The essence of this defense is that the defendant, as a result of the condition in question, has a certain status such that it would be improper to hold him or her morally blameworthy.^46,54,61 Infants, for example, are not held criminally responsible for their acts because they are not regarded as having the capacity for rational thought that would designate them as blameworthy persons in the eyes of the law.⁴⁶ Individuals who commit acts of violence due to automatisms occurring during altered states of consciousness, for example, somnambulism, complex partial seizures, and delirium tremens, may also be excused from responsibility.^62,63

The insanity defense is the best known of the excuse defenses. As noted earlier, the essence of the insanity defense is the centuries-old recognition that certain individuals should not be held morally blameworthy and therefore are not criminally responsible for their acts.⁴⁶ Societies have drawn a line between those conditions that may relieve one of moral blameworthiness and those that do not. Like many moral issues, that line is not always clear. For example, while automatisms, as noted, may be the basis for an excuse defense, dissociative identity disorder (multiple personality disorder) has had far less success, perhaps because of the skepticism of the law and society in general about the disorder.⁶⁴ Voluntary intoxication, as a state brought on by the willful act of the defendant, is not allowed as the basis for an insanity defense.⁵³ However, mental conditions exacerbated by intoxication or resulting from long-term substance abuse may be used as the basis for an insanity defense.⁶⁵ In many states, voluntary intoxication can be used to argue for diminished capacity, a state of altered behavior that does not fulfill criteria for a full insanity defense but may be used to lessen the severity of the crime of which the defendant is convicted, for example, from first- to second-degree murder.^66,67

There are a number of landmark cases that mark the development of the insanity defense in Anglo-American law. The changes in the standards mark alterations between those that are purely volitional (ability to control one’s behavior), purely cognitive (knowledge of wrongfulness), combined volitional-cognitive standards, and pure mens rea standards. One state uses yet another approach, known as the “product” test.⁴⁷

An early example of a volitional standard is the “Wild Beast” test, described in Rex v. Arnold (1723).⁶⁸ In that case, the court held that “Mad Ned” Arnold, on trial for shooting Lord Onslow, could be found not guilty by reason of insanity only if he were completely devoid of control. The judge wrote, in part:

At the turn of that century, the insanity acquittal of James Hadfield,⁶⁹ charged with High Treason after his failed attempt to assassinate King George III, turned on the court’s acceptance of defense counsel’s argument that those with mental disturbances short of “Wild Beast” status were also eligible for an insanity acquittal. Lord Erskine successfully argued on Hadfield’s behalf that

Hadfield was found not criminally responsible due to his illness (a delusional state that appeared to result from a saber wound to the skull while fighting the French at the Battle of Freymar). Under the terms of the Insane Offenders’ Act, passed by Parliament during the course of his trial, Hadfield was remanded to Bethlem Hospital, there to be held, “until his Majesty’s pleasure be known.”⁸

The next major development in the insanity defense, the M’Naghten standard,⁷⁰ has remained a major component of modern criminal responsibility standards. In 1843, M’Naghten, a Scottish woodturner, shot and killed Edward Drummond, private secretary to Prime Minister Robert Peel, after mistaking him for the Prime Minister. He was found not guilty by reason of insanity, thanks to his skillful counsel’s success in convincing the court that M’Naghten’s “partial insanity” provided an adequate basis for excusing him from responsibility.^8,51

The public was outraged by M’Naghten’s acquittal, as was Queen Victoria. In response, the House of Lords posed five questions to the judges of the court and convened them to answer the questions and explain the rules by which criminal responsibility would be determined.⁸ The Lords first wanted to know what the law was with respect to crimes

In response to this first inquiry, Lord Chief Justice Tyndal explained:

Thus, if a person suffering from a paranoid delusion killed another whom he believed was about to kill him, he could be acquitted on the basis of self-defense. However, if the delusional belief was that the victim had libeled him, he would be convicted, as libel does not justify murder.⁷¹

In responding to the inquiries about the proper instructions to the jury and what facts were to be considered, Lord Chief Justice Tyndal described what has come to be known as the M’Naghten Rule:

Under this rule, for a defendant to be found not responsible, he had to be (1) mentally ill and either (2) unaware of what he was doing, for example, believed he was pointing his finger when in fact he was pointing a pistol, or (3) unaware that he was committing an unlawful act, for example, believed he was defending himself against deadly attack. Notably, M’Naghten would have been convicted had this standard been applied to him.

Subsequent developments in the insanity defense, both in England and the United States, tended to expand the criteria, as knowledge and attitudes regarding mental illness changed. The “irresistible impulse test,” which looked to whether a defendant had the ability to conform his or her behavior to the requirements of the law, even while knowing that the act was wrongful, made its way into English and American jurisprudence by the late 1800s.^8,47 The New Hampshire Rule, which is still the standard in that state, asks the jury to find the defendant NGRI if the alleged criminal’s act was the product of a mental disease or defect.⁴⁷

In 1962, the American Law Institute’s Model Penal Code introduced criteria for an insanity defense that offered alternative bases for an NGRI verdict: either the cognitive component of M’Naghten or the volitional component of the irresistible impulse test.⁵³ The standard is as follows:

By the early 1980s, 25 states were using the American Law Institute’s Model Penal Code standard, as were the federal courts. John Hinckley’s attempted assassination of President Ronald Reagan, and his subsequent acquittal on the basis of lack of criminal responsibility, changed that, however. Hinckley’s acquittal, like M’Naghten’s, resulted in demands to restrict, and in some cases eliminate, the insanity defense.⁷² With support from the American Psychiatric Association and American Bar Association, Congress enacted a new standard for criminal responsibility in the federal courts:

This standard essentially adopted the M’Naghten standard, completely eliminating the volitional component contained in the American Law Institute’s Model Penal Code standard. It also made clear that the defendant must be unable to appreciate the wrongfulness of his or her conduct, rather than merely lacking “substantial capacity” to appreciate wrongfulness. In addition, Congress made clear that the underlying disorder related to the crime must be “severe” and shifted the burden of proof to the defendant. Just as with M’Naghten, the subsequent modification of the federal standard would have likely resulted in Hinckley’s conviction, had it been in place at the time of trial.

The impact of the Hinckley acquittal spread beyond the federal system to the states.⁵² According to Melton and colleagues,⁷⁴ by 1995, 5 of the 25 states that had been using the Model Penal Code test in its pure form had given it up, with about half the states using a form of the M’Naghten rule. Twelve states expanded the verdicts available in cases involving mental illness by introducing “guilty but mentally ill” verdicts. In these states, a defendant may be found guilty, guilty but mentally ill, not guilty, and not guilty by reason of insanity.⁵² Three states abolished the insanity defense completely and established procedures to commit guilty but mentally ill defendants, with mixed results.^52,75,76 Changes in other jurisdictions included shifting the burden of proof from the prosecution to the defendant and tightening the definition of mental illness.⁵²

As noted previously, the insanity defense is an expression of society’s view that it is inappropriate to impose criminal responsibility on individuals who are not morally blameworthy. The various criminal responsibility standards are efforts by individual jurisdictions to operationalize this universal notion in a manner consistent with public attitudes. Studies of the impact of different criminal responsibility standards indicate that mock jurors using the different insanity defense standards arrive at similar verdicts in similar cases, regardless of the standard used.⁷⁷ Mock jurors given no standards, merely instructions to use their best judgment, arrived at the same verdicts as those asked to apply specific standards.⁷⁸ From these and other studies, it appears that factors other than the formal criminal responsibility standard determine whether or not a defendant will be found NGRI. Those factors include the nature of the crime, the nature of the illness, the nature of the act, and the consequences the jury sees attached to a guilty versus NGRI verdict.⁴⁷

The question of what to do with insanity acquittees has a problematic history. In most jurisdictions, insanity acquittees are automatically committed to a state psychiatric facility for a defined initial period for evaluation and treatment. At the end of that initial period, a recommitment hearing is held; states are free to use lower standards of proof for commitment of insanity acquittees (preponderance of the evidence) than for noncriminal candidates for commitment (clear and convincing evidence). The Supreme Court has held that the government may automatically confine insanity acquittees, regardless of their crime, and hold them until such time as the acquittee can prove that he or she is no longer mentally ill or dangerous.⁷⁹

Insanity acquittees who refuse treatment with antipsychotic medication may be treated against their will under the same rules that apply to other civilly committed patients in that jurisdiction. Civil standards apply because these individuals have not been convicted of any crime, and therefore can only be held in a hospital if they meet normal civil commitment standards.

EVALUATIONS OF CRIMINAL RESPONSIBILITY

Evaluations of criminal responsibility are, by necessity, retrospective mental status examinations. The focus of criminal responsibility evaluations is assessment of the individual’s mental state at the time of using the current examination, a review of medical and criminal records, and information from collateral sources and a conclusion regarding that status relative to the jurisdictional standards for criminal responsibility. Under ideal conditions, the accused is evaluated by mental health professionals as close to the occurrence of the act as possible. In many cases, however, the forensic evaluator may not see the defendant until months or years after the crime. An excellent discussion of these evaluations is provided by Melton and associates.⁷⁴

A number of clinical conditions can affect criminal responsibility, for example, delirium, depression, psychosis, delusions, panic and other anxiety disorders, sleep disorders, obsessive-compulsive disorder, seizures, and other neurological disorders. In light of this, the clinical evaluation should be detailed and extensive, with a full review of systems. Medical records should be examined and laboratory studies ordered to assess for the presence of other illnesses and conditions, including intoxication.

Criminal responsibility evaluations are complicated not only by the retrospective nature of the analysis, often over time, but by the fact that the sources of information are often incomplete or biased. Police reports, statements from family members, victim statements, and the defendant’s self-report are also essential parts of the evaluation. And all of them are affected, to greater or lesser degrees, by their own inherent bias, which is often difficult to detect. The Model Penal Code, in Section 4.05, provides an outline of what the report on a criminal defendant should contain.⁵³

DEMOGRAPHICS OF THE INSANITY DEFENSE

Public misperceptions of the insanity defense include that it is frequently used, often successful, and available primarily to wealthy, educated defendants. Various studies have indicated that the insanity plea is used in 0.1% to 0.5% of felony cases,⁷⁴ except in Montana, where it was as high as 8% between 1969 and 1979.⁷² Notably, Montana is one of the states that abolished the insanity defense post-Hinckley, although for practical purposes, the defense is still available.⁷⁶

The success rate of the insanity defense varies across jurisdictions, but studies by Steadman and co-workers⁸⁰ and Callahan and colleagues⁸¹ indicate that it is successful in approximately 25% of those cases where it is used. This yields an estimated successful utilization rate of approximately 0.125% nationally. In the majority (over 70%) of cases in which it is successful, the case is resolved by a mechanism such as plea bargaining, rather than a jury trial.⁷⁴

CONCLUSION

Mental illness and the criminal justice system are inextricably intertwined. Mental illness may lead to incarceration, if only to remove mentally ill individuals from the streets in the absence of more suitable community alternatives. Psychiatrists are frequently called on to evaluate individuals involved in the criminal justice system at various points in the criminal justice process, from initial arrest to imposition of punishment. Common questions include competence to stand trial and criminal responsibility. As with all consultations and evaluations, psychiatrists who accept such assignments must be aware of the applicable standards and familiarize themselves with ethical guidelines for their participation in criminal matters. It is important for all psychiatrists to be aware of ways in which the criminal justice system may involve them and their patients.