Saturday, January 12, 2013

Reforming the Insanity Defense

Over on Peter Earley's blog there is a post entitled "How Fair Is The Insanity Defense" that you should all go over and read. I thought about writing a comment there but quickly released this would require a post of its own, so here it is.

He starts out with a case description of a man with an undoubtedly severe mental illness who either shot or assaulted many people while delusional. In 1992, after a failed attempt at civil commitment, he shot and killed two people. At trial state psychiatrists testified that he knew killing was wrong, even though motivated by delusion---in other words, a legally sane crime by the McNaughten test of insanity (which Mr. Earley describes well, I won't be repetitive here). He was sentenced to death and eventually executed in spite of a recommendation for commutation by the Texas Board of Pardon and Paroles.

Mr. Earley is critical of the McNaughten test and feels that we should rethink the legal definition of insanity. He also advocates to end the use of private forensic experts, a point I'll return to later.

First, I think the public should understand there is a certain logic to when and how a defense attorney decides to file an insanity plea. Mr. Earley is appropriately critical of attorneys who file the plea "when their client is obviously guilty and they don't have any other rational explanation to fall back on." It's true that there is sometimes a hidden agenda for requesting a sanity evaluation: there may be a chance that an evaluation could turn up mitigating information that could be used at sentencing, or as leverage in a plea bargain.

Setting aside the hidden agenda, the fact of the matter is that insanity pleas are filed rarely compared to the overall number of offenses that happen every year. This is particularly true of misdemeanors. That's because an insanity plea, if successful, could lead to the defendant ending up under court or health and mental hygiene supervision for years. A simple guilty plea could get a client out of jail, with or without supervision, in months. The attorney is obligated to act in the stated wishes of his client, and that wish is obviously going to be to get out as soon as possible. Thus, we usually only see insanity pleas filed in very serious, felony cases.

So how rare is it? In Maryland, an insanity plea is filed in fewer than one-half of one percent of all crimes commited in a year, both in Circuit and District Court. Out of all crimes committed in Maryland, only 0.032% end in a successful insanity verdict. This certainly doesn't suggest that the defense is being abused.

Regarding the proposal to use court appointed experts (please see also my previous post on private evaluations):

We're already doing that. Most jurisdictions have individual psychiatrists or psychologists working on behalf of the court, either in a court-affiliated medical clinic or under contract with the state's department of health. As the system usually works, this independent court-appointed evaluator completes an assessment and sends a report with an opinion about sanity back to the judge who ordered the evaluation, with a copy sent to the defense attorney who filed the plea and to the prosecution. (Exact details of who gets the report, when they get it and how it can be used may vary between states. I'm speaking in very general terms here.)

Then and only then will a private expert get involved, mainly because one side or the other won't be happy with the independent expert's opinion. In my experience, this usually takes place when the independent expert thinks a defendant is sane and the defense wants to challenge the report. In Maryland, if the court's expert finds someone insane that opinion is almost never challenged by the prosecution because both sides recognize, and agree, that this person is very very sick. (I think the number is somewhere near 90% agreement on insanity but I don't have the study in front of me.)

In short, the insanity defense is hardly ever used and private forensic expert involvement is even less common than that. Out of a few hundred evaluations done every year in our forensic hospital, only a handful will involve a private opposing expert.

Whether or not the legal test of insanity should be changed is an issue that arises regularly throughout history, most recently in 1984 following the assassination attempt on Ronald Reagan. Then, Congress passed the Insanity Defense Reform Act which changed the test on a Federal level. It excluded any category of mental illness from serving as the basis of an insanity plea unless the diagnosis was a "serious" mental illness. Many states, including Maryland, revised their insanity statutes following the Hinckley verdict. Four states have completely abolished the insanity defense.

And I guess that's the trick when it comes to opening the bag of worms of insanity reform: there's always the chance, particularly given the outrage following the Connecticut shooting, that the defense could be thrown out altogether. And then where would my seriously mentally ill forensic patients be? The Supreme Court recently had the opportunity to hear a case that would have challenged the constitutionality of a state statute barring the defense, but they turned the case down.

OK, that's wraps up my response. I just wanted to provide a little more background and factual information to the topic since it is going to be discussed a lot in the news as certain high profile cases come to trial.


roblindeman said...

As usual, Clink, you have struck the nail on the head: The essential problem with the insanity defense, is that, if successful, results in a longer, usually indefinite sentence (and as you know I am going to add, all of this is of questionable constitutional provenance to say the least!)

Anyone who wishes to argue that he did not have a mens rea when he committed a crime is, well, crazy!

Anonymous said...

I don't know, it sounds like the insanity defense worked out well for Deanna Laney who stoned her children to death in Texas. She is out and about now.

roblindeman said...

Whoops. It's true: Deanna Laney is out of jail, 9 years after bashing her children's heads in with a rock.

Deanna Laney Released From State Hospital

By Dayna Worchel -

May 25, 2012

A New Chapel Hill housewife who was acquitted by a Smith County jury in April 2004 on reasons of insanity for stoning her sons to death has been released from Kerrville State Hospital.

Smith County District Attorney Matt Bingham said Deanna Laney, now 47, has been confined to the hospital since 2007 after she was transferred from Vernon State Hospital in 2004.

There was a closed-door civil commitment hearing for Ms. Laney in November in the 114th District Court, but the outcome of that hearing was unclear.

"All of the doctors who came to the November hearing testified that she wasn't mentally ill," Bingham said. He added that his office did everything possible to find evidence to allow Ms. Laney to remain in the mental hospital, including calling in his own experts to testify.

Bingham said he respected the verdict of the jury and that Judge Christy Kennedy "did what she had to do and followed the law." He said he wants the public to understand that his office and Judge Kennedy had to follow the law.

According to Judge Kennedy's order, "Witnesses testified that Deanna Laney was not likely to cause harm to herself, that she was not likely to cause serious harm to others and that she was not experiencing substantial mental deterioration of her ability to function independently. All witnesses testified that there was no further need for Deanna Laney to continue inpatient treatment."

Bingham said he did not know exactly when Ms. Laney was released and did not know where she was living. Her treatment plan has been sealed by the court, he said, because the case became a civil matter after she was acquitted. Her husband, Keith Laney, has been notified of the release, Bingham said.

Matt Bingham and Ms. Laney's defense attorney F.R. Buck Files had said they were barred by law from discussing the results after the November hearing.

When Ms. Laney was acquitted by a Smith County jury in April 2004, then-114th District Judge Cynthia Stevens Kent ordered Ms. Laney be placed in a maximum-security inpatient treatment facility. Since then, it has been determined at hearings each year that Ms. Laney should remain at an inpatient facility. Judge Kent retired from the bench in 2008.

In June 2004, Vernon State Hospital transferred Ms. Laney from its maximum-security facility to Kerrville State Hospital, a nonsecure inpatient facility, court documents state.

Between August and December 2005, Ms. Laney's treatment team granted her brief passes off the hospital campus in Kerrville.

In 2007, after attorneys discovered that Ms. Laney had been transferred from Vernon State Hospital to Kerrville State Hospital and was being allowed unsupervised furloughs by doctors, Judge Kent put a stop to it at the request of prosecutors.

Ms. Laney's defense attorneys appealed the decision, but the 12th Court of Appeals ruled in April 2007 that the Texas Department of Mental Health and Mental Retardation could not grant Ms. Laney passes to leave the facility with her parents to go shopping and dining in the Hill Country.

roblindeman said...

Anybody else know of cases of murderers like Deanna Laney who were acquitted by reason of insanity and are free now?

A Girl said...

I found these two

Insane killer of baby gains release from state mental health hospital

Eric Sawyer of West Palm Beach to be transferred to Tallahassee treatment center

roblindeman said...

Eric Sawyer is still incarcerated, though not in a mental hospital. He is not free in any meaningful sense. It's unclear where Michael Charles Hayes is.

roblindeman said...

More on Hayes.

Anonymous said...

Rob, in addition to Laney, I remembered the following case:

Lisa Ann Diaz in Plano, Texas killed her two children in 2003 and I believe she was only institutionalized in a state hospital for less than 3 years. She didn't stay long.

Anonymous said...

Dena Schlosser is another one, I think she was released then sent back again.

Texas goes pretty easy on women who kill their children.

ClinkShrink said...

Remember that an insanity acquittee is not a convicted criminal. The length of hospitalization is related to the time required for clinical improvement, and has no relation to a criminal sentence. When was the last time you ever heard of a psychiatric patient requiring a three year hospitalization to treat a condition?

What's the length of stay for an average psychiatric admission in a non-forensic facility, maybe 7-10 days max?

Why do you suppose forensic patients (not criminals) stay in a hospital for three years or more?

roblindeman said...

"Why do you suppose forensic patients (not criminals) stay in a hospital for three years or more?"

Why? Because "[t]he length of hospitalization is related to the time required for clinical improvement", which is subjective, no, arbitrary and is based on no objectively valid standard.

They let you out when they feel like it.

I recently watched "Terminator 2" again, this time with my sons. There's a fascinating series of scenes in the beginning of the film where Linda Hamilton is interviewed by a mental hospital staff psychiatrist and she begs him to be released (not "discharged", "released") so that she can see her son.

The delicious irony of these scenes is that the Linda Hamilton character is NOT delusional: everything she says is "true" in the narrative.

Her psychiatrist refuses her request, whereupon she breaks his arm and jabs a syringe full of bleach into his neck.

Great. Film.

Dinah said...

Rob, news flash: Terminator 2 is fiction. Second thought, I don't think many people will agree with you that someone who breaks their doctor's arm and jabs a syringe full of bleach into his neck should have been released even if she wasn't obviously delusional.

roblindeman said...

Whoa Dinah, Hang on a minute. I was hyperbolic and you missed the point.

The point is that the Linda Hamilton is NOT delusional, she is a hellion who pisses people off and commits crimes. She is kept in prison only because no one believes her story (the fact that her story is true is irrelevant).

And she breaks the psychiatrist's arm only AFTER he refuses to give her a furlough.

Finally, regarding fiction. A wag once noted that the difference between reality and fiction is that fiction needs to make sense.

The stories told on comment section of this post would bomb at the box office