Franke: Insanity Defense
by Mark Franke
To listen to typical conversations these days, one can easily get the impression that most issues have simple answers. It seems that no matter the question at hand, the responses are quick in coming and declarative to the extreme. One friend of mine ends his strongly opinionated statements with “Period!”.
That is what I like about my monthly Socratic discussion group. While we don’t check our personal opinions at the door, we expect everyone’s opinion to be challenged by rhetorical friend and foe alike. Our goal is to leave with a consensus on the monthly provocation, which is what we call the issue to be discussed.
At least that’s the way it is supposed to work.
Last month we left with no comprehensive solution to propose even though we did agree on several reforms that would move us closer to an optimal resolution.
The provocation was to propose reform of the judicial system to disallow pleas of “not guilty by reason of insanity” for violent criminals and repeat offenders. This was submitted by two members, one of whom is a practicing attorney. We also have a retired judge in our group so technical expertise was at the table.
The issue revolves around a legal principle known by its Latin name — mens rea. Literally this is translated as “guilty mind” but is better defined as the inability of knowing right from wrong. To put it another way, it is the lack of capacity for intentional action.
There are both practical and philosophical implications in how this issue is embedded in our jurisprudence. We took on the philosophical question first.
Does the defendant have the moral compass to know right from wrong?
Does the defendant have the mental capacity to form evil intent?
These two questions help determine the validity of the not guilty plea. There are tools the judge can use to rule on the plea. One is the M’Naughten Test, named for a putative assassin of a British prime minister who shot the wrong man. I was familiar with the historical incident but didn’t realize its importance until it was explained by a member.
Note that the test centers on the defendant’s cognitive ability, not his morality. Enter the Model Penal Code test, which adds a volitional element. In this test the defendant’s ability to conform his conduct to the demands of the law can be considered.
Adding volition to the equation sounds too much like a Flip Wilson defense: “The Devil made me do it.” I would have been happy to discuss the theological implications of this but our Socratic rules are there to prevent going down rabbit holes, no matter how appealing.
Moving to the practical side of the issue, the group saw an obvious problem — violent repeat offenders avoiding conviction through an insanity plea. But this led to two further questions.
How frequently is this defense used and is there any indication that its frequency will increase?
In answer to the first question, it is not a common occurrence. One study reported that only about 30 felonies are dismissed nationwide on insanity pleas each year. Which leads to the second question.
It does not take a mental health professional to be concerned about the increasing frequency of senseless violence in our brave new world. The group suggested descriptors like rage, irrationality, hopelessness and trauma to paint a psychological portrait of a society rapidly devolving into a Hobbesian state of nature. While Thomas Hobbes could never have foreseen this, the pervasiveness of 24 hours news channels, Google search and artificial intelligence are supplanting rational thought with instantaneous passionate reaction.
The group foresees two overarching trends that suggest an increase in insanity pleas being offered.
The first is our ability as a civilized people to adapt to increasing disaffection among a growing segment of our citizenry, mental entropy if you will. Mental illness has spiked in the past 50 years but it was unclear to us whether this is due to improved diagnoses or the above-mentioned disaffection.
The second trend is simply a matter of the judicial workload imposed on our criminal justice system. Insanity pleas are a function of the prosecutor’s office workload. A judge cannot entertain an insanity plea unless the prosecutor recommends it.
Have our county jails become overloaded due to a need to house convicted criminals who would be better rehabilitated in mental hospitals? One member suggested that the failure to understand this difference has led to the federal court order for Allen County to build an expensive new jail. Would some of that money have been better spent on the construction of mental hospitals?
Our session ended on this depressing note. Will the White House correspondents dinner shooter become a test case for pushing the insanity defense? The shooter’s attorney is being coy for the present. Supreme Court, get ready.
Mark Franke, M.B.A., an adjunct scholar of the Indiana Policy Review and its book reviewer, is formerly an associate vice-chancellor at Indiana University-Purdue University Fort Wayne.
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