The mental disability requirement in the insanity defense.

This paper offers a discussion of some of the nuances of mental disease or defect as required for the insanity defense in criminal law. It also compares and contrasts the mental disease or defect definitions of criminal law with those definitions used in clinical practice. It points out a general pattern of vagueness and dispute regarding the proper interpretation of the mental disability requirement in the insanity defense and in other legal provisions. It reports a variety of interpretations by courts and commentators regarding the meaning of these phrases, and it reports attempts by state legislatures to narrow the range of applicable conditions by excluding various mental or emotional states.     

Drug-associated psychoses and criminal responsibility

At present, the law draws a distinction when assigning criminal responsibility to those who commit offences while experiencing psychotic symptoms: if the symptoms are believed to arise because of ingesting drugs (an external cause), the offender is generally convicted of the offence; if the symptoms arise from a mental illness (an internal cause), the offender may be afforded a defence of insanity. In practice, drawing such a distinction can be problematic. There are difficulties for example in determining criminal responsibility when the use of drugs is followed by the emergence of a psychotic illness process that then continues to have an independent existence even in the absence of the ongoing substance use. This article analyses legal, policy, and expert witness perspectives relating to liberal, conservative, and intermediate approaches to this problematic area of jurisprudence.     

The mental illness defense in the capital penalty hearing

Several defense strategies are available to the capital defendant who is arguing for life in the penalty phase, including a mental illness (MI) defense. An MI defense presents psychiatric testimony to the effect that the defendant was mentally disturbed at the time of the offense and, therefore, should not be held completely responsible. The few studies available suggest that an MI defense will be ineffective because (1) death-qualified jurors do not respond favorably to purely psychological explanations of criminal behavior and (2) an MI defense may erroneously mislead the jury regarding the defendant's unpredictability and dangerousness. Analagous studies of insanity acquittals suggest certain factors that may be associated with a succesful MI defense.     

Neuroscience, Ethics and Legal Responsibility: The Problem of the Insanity Defense

The insanity defense presents many difficult questions for the legal system. It attracts attention beyond its practical significance (it is seldom used successfully) because it goes to the heart of the concept of legal responsibility. ??Not guilty by reason of insanity?? generally requires that as a result of mental illness the defendant was unable to distinguish right from wrong at the time of the crime. The many difficult and complex questions presented by the insanity defense have led some in the legal community to hope that neuroscience might help resolve some of these problems, but that hope is not likely to be realized.     

NGRI Revisited: Venirepersons' Attitudes Toward the Insanity Defense1

Three hundred venirepersons from the 12^th Judicial Circuit in Sarasota, Florida completed the following booklet of stimulus materials: one question measuring participants' level of support for insanity defense; a 16‐item measure assessing participants' attitudes toward the myths associated with the insanity defense, the legal definitions of insanity, and mental illness; a case scenario; verdict preference; and standard demographic questions. Level of support for the insanity defense was significantly related to participants' attitudes toward legal standards of insanity, mental illness, and the myths associated with the insanity defense. In addition, results indicated that level of support for the insanity defense, age, educational level, occupation, type of prior jury service, and political views were significantly related to verdict preference. Notably, three factors that have been found to impact verdict preference in previous research failed to do so in the current study: participants' experience with psychological disorders; participants' exposure to psychotropic medications; and participants' experience with psychologists or psychiatrists. The findings both replicate and extend earlier findings by suggesting that attitudes toward the insanity defense are more complex than previously imagined.     

The insanity defense: Historical development and present status

This article provides an overview of the historical development of the insanity defense, including a discussion of the standards which have been used to excuse someone from criminal responsibility. The legal issues raised pre-trial and at trial are presented, along with a discussion of current proposals to modify or abolish the insanity defense. The article also focuses on the disposition of insanity acquittees, including both the case and statutory law in this area. Constitutional bases for challenges to differential procedures for insanity acquittees, along with proposals to change the law relating to them are included.     

Use of the insanity defense: A survey of attorneys in wyoming

Attorneys in the State of Wyoming were surveyed to determine their reported use of the insanity defense during the preceding 5 years. They were asked about the success, defined as “benefit to the defendant,” of the insanity defense at various stages that occur before trial. The attorneys reported that the insanity defense is used throughout the various stages preceding trial, with more use and benefit to the defendant being reported than previously suggested. This was particularly true for the earlier stages in the criminal justice process. The attorneys were also asked various attitude questions related to the insanity defense. Defense lawyers were more in from of the insanity defense and expressed attitudes that supported the insanity defense while prosecuting attorneys were relatively more opposed to the insanity defense and expressed attitudes consistent with this view.     

Voluntary intoxication and criminal responsibility.

This paper reviews the law related to voluntary intoxication and criminal responsibility in the 50 United States, the District of Columbia, the US Virgin islands, and Puerto Rico. Statutory and case law citations are provided which govern the use of intoxication evidence in each jurisdiction to negate mens rea (i.e., to establish diminished capacity), to support an insanity defense, and to mitigate criminal sentencing. Factors that courts typically focus on when deciding whether to admit this evidence in a particular case are discussed, and these factors are related to clinically relevant criteria.     

Insanity defense research and treatment of insanity acquittees

This article is a comprehensive review of issues relevant to the insanity defense and the disposition of insanity acquittees. The characteristics of persons found Not Guilty by Reason of Insanity (NGRI) are described. Although the locus of treatment of the NGRI acquittee varies by jurisdiction, at this time, care and detention of insanity acquittees fall mainly to state mental health agencies. Recent reforms, as they relate to locus of treatment, are reviewed and public policy issues are discussed. The author concludes that more clinical research on the insanity acquittee is necessary for the development of more informed public policy on the insanity defense.     

The defense of extreme emotional disturbance in New York County: pleas and outcomes

A number of studies have investigated the use of the insanity defense; however, there are few reports on the use of other types of psychiatric defenses. This study explored the use of the affirmative psychiatric defense of extreme emotional disturbance (EED) in New York County (one of the five counties which comprise New York City). The results of the study indicate that, as in the case of the insanity defense, EED is rarely proffered by criminal defendants (plea rate 0.84%). The defense only prevailed on one occasion at a jury trial. While the EED defense was successful 39% of the time that it was entered, this was usually only when the prosecutor accepted the argument that was offered by the defense.     

Without Thinking: Impulsive Aggression and Criminal Responsibility

In the U.S. the decision to impose criminal responsibility rests on an assumption about the defendant's decision to engage in proscribed conduct. We punish only those who we believe had the capacity to make a choice. In an increasingly violent world, the criminal law and the assumptions upon which it rests are relentlessly tested. A new generation of neuro-imaging technologies offers to provide insights into structural and functional abnormalities in the brain that may limit the autonomy of many dangerous offenders and unravel the fabric of the criminal justice system. How will the results of these technologies be received by the courts—are they relevant to existing formulations of the prima facie case, the insanity defense, or mitigation of sentence; will changes in the science or the law be required to accommodate this knowledge? The new generation of technologies may appropriately play a role in assessing culpable mental states only if they are also reliable. This short article takes on these and a host of other related questions at the intersection between science, law, and science fiction. Copyright © 2008 John Wiley & Sons, Ltd.     

A population-based study of the association between pathological gambling and attempted suicide

The association between pathological gambling and attempted suicide was examined using data from a prevalence study conducted in Edmonton, Alberta, Canada. The sample size was 7,214, the questionnaire was the Diagnostic Interview Schedule, and diagnoses were made on a lifetime basis according to DSM-III criteria. Logistic regression analysis was performed, with attempted suicide as the dependent variable. The odds ratio for pathological gambling was statistically significant (odds ratio = 4.91; 95% confidence interval = [1.41,17.1]) when major depression was the only comorbid mental disorder in the model. As terms for additional mental disorders were included, pathological gambling ceased to be statistically significant. It was concluded that a history of pathological gambling is associated with previous attempted suicide, and that the association may be due to a common factor--"mental illness."     

Voluntariness, intention, and the defence of mental disorder: toward a rational approach

This article addresses how mental disorder may be used in common law countries to negate the requirements of voluntariness and intention in serious criminal offences as well as to provide the basis for current versions of the insanity defence. The notion that mental disorder can cause conduct to become completely involuntary or unintentional is questionable, given current thinking in the behavioral sciences. This article argues that different forms of mental disorder should be subsumed within a separate defence of mental disorder. Providing that a range of dispositional options is available, the law in this complex area would be simplified and brought into line with current psychological notions of goal-directed behavior.     

Insanity and responsibility

This paper attempts to set forth, in the context of Anglo‐U.S. criminal law, the meaning of the concept of insanity, its necessary relation to absence of responsibility, and its bearing on some relevant psychiatric concepts and legal controversies. Irrationality is a distinctive and necessary (but not sufficient) condition for insanity. Irrationality consists in failure even to grasp the relevance of what is ‘essentially’ relevant. To that extent there obviously can be no responsibility. A mental makeup which renders one (who would not normally be so) substantially incapable of rational conduct constitutes insanity, and in that respect renders the person non‐responsible. Much more broadly and roughly speaking, the mind that is ill is the mind that is irrational (and hence in that respect non‐responsible).     

Mental health criminal defenses in persons with neuropsychiatric disorders

Persons with neuropsychiatric disorders present specific and unique challenges for forensic experts and defense attorneys in the criminal justice system. This article reviews two potential criminal defenses: legal insanity and the various legal standards or tests of criminal responsibility that are used in jurisdictions throughout the United States (i.e., the M’Naghten standard and the American Law Institute's Model Penal Code), and the partial legal defense of diminished capacity (lacking the mental state necessary to be found guilty of a specific intent crime). The process of evaluating criminal responsibility or diminished capacity is also presented with a specific emphasis on common issues that arise in evaluating defendants with Intellectual Developmental Disorder (Intellectual Disability), Parasomnias, Seizure Disorders, and Neurocognitive Disorders.     

Glücksspielsucht in der Rechtsprechung des Bundesgerichtshofs

Among the non-substance-related addictions, pathological gambling is the only one that has gained noteworthy forensic relevance. There are numerous parallels to substance-related addictions and not only in the symptomatology. A high proportion of pathological gamblers commit criminal offences to enable them to continue gambling or to pay gambling debts. According to the jurisdiction of the Federal Court of Justice (BGH) pathological gambling in itself cannot be considered as a pathological mental disorder or other serious mental abnormality that substantially diminishes the responsibility of the offender (German Penal Code § 21 StGB); however, the BGH recognizes that in serious cases of pathological gambling mental changes and personality defects can evolve that show similar structure and severity to substance-related addictions and severe withdrawal symptoms might also develop. As with substance-related addictions a substantial diminution of the offender’s responsibility can be assumed, therefore, also with pathological gambling if it has led to most severe personality changes or if the offender suffered from severe withdrawal symptoms while committing an addiction-related crime. According to these criteria a substantial diminution of the offender’s responsibility can be stated only in very rare cases. A custodial addiction treatment order (§ 64 StGB), which is also possible for fully responsible delinquents, is not applicable to cases of mere pathological gambling because the order requires an addiction to alcohol or other drugs. A mental hospital commitment order (§ 63 StGB) can be issued by the court under the same strict conditions that are applied to cases of substance-related addictions. Based on these principles this can only be issued if the defendant is addicted to gambling due to a mental defect that can be distinguished from the addiction itself or if the dependence has already been manifested in very severe personality changes. Pathological gambling can cause a propensity to commit serious offences and therefore, under the further conditions of §§ 66, 66a StGB justify detention for the purpose of incapacitation or a deferred incapacitation order. Even during imprisonment, detainees must be offered a suitable therapy (§ 66c para 2 StGB); however, penitentiaries do not offer the best environment for the treatment of pathological gamblers. The treatment in an addiction therapeutic setting appears to be more promising. Criminal political demands to make custodial addiction treatment orders also applicable to pathological gamblers have, however, very little chance of success.     

The question of sanity restoration in jail

Severe mental illness, especially psychotic disorders that are worsening, acute or complicated, normally require intensive psychiatric care and treatment that is most appropriately provided in a mental hospital. For criminal defendants, transfer to a forensic security hospital has traditionally been the means of achieving hospital care for mentally disordered defendants who have been found incompetent to stand trial or not guilty by reason of insanity. In recent years, with the shortage of intermediate and long-term hospital beds in the United States, including forensic security hospital beds, jail-based competency restoration programs are being established, seemingly obviating hospital transfer. Potential advantages of and concerns about jail-based, as opposed to hospital-based, competency restoration programs are discussed in the literature. If defendants with severe mental illness traditionally treated in a forensic security hospital for competency restoration are now treated for competency restoration in jail, it is not inconceivable that insanity acquittees could one day be treated in jail for sanity restoration. With the premise that it is better to consider the potential consequences before this becomes a serious proposal and is implemented, this analysis examine the advantages and concerns that have been put forth for jail-based competence restoration programs as they may or may not apply to jail-based sanity restoration programs. Substantial commonality is recognized, but also some differences, as well as reason for skepticism of the purported virtues of either alternative to care and treatment in forensic security hospitals.     

The insanity defense: Legal standards and clinical assessment

Although the insanity defense is used infrequently, it has received significant attention from legal and mental health professionals. In this article, we review the historical development of insanity defense standards and describe the standards currently employed in the United States. We present a model for evaluating a defendant's mental nonresponsibility, and we briefly discuss the legal standards and procedures for the assessment of insanity acquittees for release. Throughout the article, we discuss some scientific, ethical, and jurisprudential issues associated with the insanity defense and nonresponsibility evaluations.     

Assessments of the treatability of forensic patients

The treatment of mentally disordered offenders receives very little attention in the literature both by itself and in comparison to other psychological issues such as the insanity defense and the prediction of dangerousness. It is argued that the treatment of mentally disordered offenders should be seen as the more central issue and that the development of an effective technology of change can, in principle, resolve certain problems with the insanity defense and the prediction of dangerousness. From this viewpoint, assessments of treatability should be seen as more practically relevant to dispositional decisions than assessments of criminal responsibility, and improvements in the effectiveness of treatment a better approach to the problem of dangerousness than attempts to improve predictive methods.