Peanut Butter and the Insanity Defense

Every morning, I wage battle against Human Female for her breakfast. I am smarter, cuter, and more persistent, but she has the advantage of being able to bodily move me into another room. Some mornings, I'm willing to concede temporary defeat and settle for the contents of my own bowl, but on peanut butter mornings, I am relentless.

At the first sniff of the heavenly scent of peanut butter on toast, I scrabble up the back of her chair and leap to the windowsill. I distract her by knocking over a house-plant, and then leap to the desk. I slink behind the glowing thing that displays this blog, and inch my whiskers towards her plate. When pushed away, I repeat.

Today, while carrying me away, Human Female told me, “Rory, don't you know that doing the same thing over and over while expecting a different result is the definition of insanity?”

Once free from her grasp, I stepped into the litter-box to ponder this. Whoever said this was clearly neither a cat, nor a lawyer.

In the law, the mental capacity of a criminal defendant at three separate stages can be an issue: at the time of the crime, at the time of trial, and at the time of punishment. As I discuss these, I'll try to address some common misconceptions of what is commonly called “the insanity defense.”

The insanity defense is the general term for the argument that a defendant cannot be held criminally responsible for the crime due to his mental state at the time of the commission of the crime. The theory, as we know it in American law today, comes from an 1843 English case. (By the way, can't you just picture me in a barrister's wig? Wouldn't I be adorable?) A man named M'Naughten believed that the Prime Minister wanted to kill him, and so M'Naughten fired into the Prime Minister's carriage, instead killing the Prime Minister's secretary. Criminal Law: Cases and Materials Second Edition, Loewy, Arnold H., page 533.  At trial, the court acquitted M'Naughten, which led the Queen to demand an explanation from the House of Lords. Id.  Their answer has become the basis of what is now called the M'Naughten Test, and is still used in many states in America. In the words of the House of Lords, a person is legally insane if “at the time of the committing of the act, the party accused was laboring under such a defect of reason from disease of mind, as to not know the nature and quality of the act he was doing, or if he did know it that he did not know he was doing what was wrong.” 8 Eng. Rep. 718, 722 (H.L. 1843). Put more simply, if the tuxedo cat honestly thought the peanut butter was poisoned and was trying to protect Human Female from eating it by eating it himself, (think she'd buy that?), or if the tuxedo cat did not understand the concept of stealing, he cannot be held criminally responsible.

Some jurisdictions created different tests, but M'Naughten remained in the majority until the creation of what is either called the “ALI test” or the “MPC test” (named after the American Law Institute’s Model Penal Code definition). Under the ALI/MPC test, “A person is not responsible for criminal conduct if at the time of such conduct as a result of a mental disease or defect he lacks substantial capacity to either appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” Criminal Law: Cases and Materials Second Edition, Lowey, Arnold H., page 533. This means that if the tuxedo cat could not understand the concept of stealing as socially wrong or understood that he was stealing, or could not help himself from stealing the peanut butter (this is fairly true, by the way), then he is not criminally responsible. This is the test used in the trial of John Hinckley for trying to assassinate President Ronald Reagan, and under which Hinckley was acquitted, (leading to the test becoming far less popular). See Id.

So, a psychiatric diagnosis is not sufficient to avoid criminal responsibility. A defendant could come into court with a stack of psychiatric records three feet high, but the only relevant information would be what he understood to be happening at the time of the crime.

In fact, the tests are so narrow, that the insanity defense is very rarely raised, and even more rarely successful. For it to come into issue, the defense attorneys have to bring it up at the beginning of the trial; no jury or judge can even consider the issue if the defense attorneys have not brought it up. And, in fact, insanity is only raised in less than  1% of all felony cases. It's successful in 15-25% of those cases.

This chart compares the tests used in the different states.  As you can see, most states use some variation of either the M'Naughten or ALI/MPC test. In some states, there is what is called a “bifurcated” trial, which you can also see on the chart. If the trial is bifurcated, the jury first hears evidence about the crime, and, having come to a verdict on the defendant's guilt, they then hear evidence that they must use to decide if the insanity defense applies, but again, only if the defense attorneys raised the issue to the judge at the beginning of the trial. Otherwise, the jury hears both evidence about the crime and the defendant's state of mind and returns verdicts on both at the same time.

In some states, the verdict automatically triggers commitment in a mental health facility. In some states, the judge has the discretion to do so. But in either case, having been found to have committed the crime, the defendant is not going “free.”

So why do so many people feel the insanity defense is an end-run around justice? Interestingly, once civilly committed to a mental institution, there's no such thing as parole, since that's an element of the criminal system. The doctors would have to be convinced that the now-patient has been cured and no longer poses a danger to society.

For the sake of this post, let's assume “justice” in this case means meeting the purposes of the criminal justice system. If the purpose is to remove criminals from society, to prevent further harm, then justice has been done. But what if the purpose is to punish the criminal? How can you punish someone who doesn't, or didn't, understand what he or she did? What if it is to deter other would-be criminals? How can you deter someone from committing a crime who doesn't understand that it is a crime? As Judge Alvin B. Rubin stated in his dissent to United States v. Lyons in 1984, “Criminal law punishes the wrongdoer. It attempts to deter others lest they suffer the same fate. If the state punishes a person for conduct that he had no ability to avoid, it imposes punishment without fault.” 731 F.2d 243 (5^th Cir. 1984). From this perspective, a verdict of not guilty by reason of insanity is socially unsatisfying.

This societal frustration can be even stronger in the second stage; when the defendant is found not competent to stand trial. This is what is currently happening in the case of Jared Lee Loughner, who is accused of shooting and killing six people, including a judge and little girl, and wounding 14, including Congresswoman Gabrielle Giffords. The judge in Loughner's case has ruled him unfit to stand trial, meaning essentially that he has found that Loughner is unable to understand the proceedings, the charges against him, and/or provide his attorneys with information to assert a meaningful defense; essentially he is unable to assert his 6^th amendment rights under the Constitution.

Of current distress to Human Female is a motion pending before the 9^th Circuit Court of Appeals arguing that a prison order mandating medication is violating Loughner's rights. (Human Female's distress may arise more from the commenters on the news articles dealing with the motion than the motion itself). The defense brief raises concerns with the fact that the name and dosage of the medication isn't named in the order and that the prison doesn't have the right to issue an order without a court hearing. However, of more significance, (to this post at least), are their objections to the medications' effect on Loughner's ability to eventually stand trial, and that his being medicated at trial will expose him to the death penalty.

The attorneys aren't saying (outright, at least), that they want the medication to stop so that he remains unfit to stand trial. They are saying that if, in the future, he becomes fit to stand trial, the side effects of the medication will prevent him from understanding the proceedings and answering his attorney's questions. Simply stated, the lawyers are saying, “he's not fit to stand trial now because he is mentally ill. If, however, there comes a time that he is able to stand trial, (probably because he has been medicated), the side-effects of the medication will also make him unfit to stand trial.”

If something was taken from society in the way of “justice,” as defined as the goals of the criminal law system, when the defendant was acquitted by reason of insanity, not having a trial at all leaves another goal unfulfilled: vengeance. There is no trial to televise, no closeups of Loughner at which to direct hate and pain.

If society can't have what it truly wants, unshooting those bullets, what point is there to take away its sense of justice when there's no question that Loughner did it, and doesn't understand what's happening anyway?

The Supreme Court touched on this issue in deciding a case dealing with the third stage of insanity; when the issue arises at the punishment stage.

I said before that, legally insane or not legally insane, Loughner is going to be behind lock and key. There is one crucial difference. If he stands trial and is found guilty, he is subject to the death penalty, (he is being tried in Federal Court, not the Arizona state court). The defense attorneys presented their concern openly in their brief: if Laughner is restored to competency by virtue of forced medication, and is found guilty, the government can execute him.

In the case of Ford v. Wainwright, 477 U.S. 399 (1986), a convicted felon was scheduled to be executed, but had become mentally ill after the trial. He did not understand where he was, or what was happening to him. The Court held that the execution would serve no purpose if the executed doesn't understand it, “we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to live.” Furthermore, the Court wanted to “protect the dignity of society itself from the barbarism of exacting mindless vengeance.”

Vengeance, then, is not a legitimate part of legal justice. The Court was echoing the belief that our Constitution, and the system we have built around it, serves to protect society from tearing itself apart with the emotions of its individuals, (however legitimate they may be).

It's too bad, really. In a society run by tuxedo kittens, we'd all take naps, chase jingly balls, and eat all the peanut-butter we wanted, and no one would ever be hurt enough to want vengeance, let alone need a justice system. I'm going to go snuggle between the Humans and dream about that. Hope to meet you all there.