The disposition of persons acquitted on insanity grounds has always cast a shadow on the insanity debate. Recently, the Supreme Court of the United States decided that these persons could constitutionally be given fewer procedural and substantive protections against indeterminate confinement than other persons confined for mental illness. The Court's opinion dealt with questions not directly raised by the case and may have been prompted by a general unease about the insanity defense itself. The opinion is likely to discourage many from entering such a plea in the future.
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References
1.
1. N.Y.L. Rev. Comm. Report on the Defense of Insanity in New York State, 2 McKinney Session Laws2261 (1981).
2.
Grant Morris , “Dealing Responsibly with the Criminally Irresponsible,”Arizona State Law Journal, p. 855 (1982); Note, Harvard Law Review, 94:605 (1981).
3.
Virginia Insanity Defense Plea Task Force , “Final Report” (Unpublished report to the governor of Virginia, Nov. 1982), p. 39.
4.
4. Jones v. United States, 103 Sup. Ct. 3043 (1983).
5.
5. D. C. Code, §24-301(d)(2). In fact, the specific provisions of commitment did not state the criteria for confinement, but the trial court in Jones used the criteria for civil commitment, taken from §24-301(e). This eminently reasonable determination was not challenged in Jones; some states retain lesser criteria for NGRIs than for those committed by regular procedures.
6.
6. Brief for the United States, p. 13, Jones v. United States (hereafter Government brief); Brief for the American Civil Liberties Union as Amicus Curiae (hereafter ACLU brief), p. 21, n. 36. The government's brief, p. 13, suggested that the only issue disputed at this hearing was where in St. Elizabeth's Jones would be confined.
7.
7. 103 Sup. Ct. at 3049 n. 11.
8.
8. Addington v. Texas, 441 U.S. 418 (1979).
9.
9. 103 Sup. Ct. at 3052.
10.
10. “Plaintiff does not challenge Congress' power to require an insanity acquitee [sic] to bear the risk of erroneous commitment during the period which the acquitee [sic] could have been incarcerated upon a finding that he was responsible for his act.” Brief for Petitioner, pp. 11-13, Jones v. United States (hereafter Jones brief).
11.
11. See 103 Sup. Ct. at 3049-51.
12.
12. Id. at 3050.
13.
13. Ibid.
14.
14. Donald Hermann, “Automatic Commitment and Release of Insanity Acquittees: Constitutional Dimensions,”Rutgers-Camden Law Review, 14:667 (1983).
15.
15. James Ellis, “Commitment of Insanity Acquittees: Unpopular Cases Make Bad Law” (Paper delivered at a conference on mental healthat the University of Miami Law School, Miami, FL, Feb. 1984).
16.
16. 103 Sup. Ct. at 3050.
17.
17. The government itself recognized that “in the final analysis this `presumption' rests not solely upon its verisimilitude, but upon the need to maintain the moral integrity of the criminal sanction.... By purposely availing himself of the insanity defense petitioner knowingly assumed and thus purposely was subject to [the presumption].” Government brief, p. 46.
18.
18. Sandstrom v. Montana, 422 U.S. 510 (1979); Ulster County Court v. Allen, 442 U.S. 140 (1979); Mullaney v. Wilber, 421 U.S. 684 (1975); Leary v. United States, 395 U.S. 6 (1969).
19.
19. Ulster County Court v. Allen at 166.
20.
20. Stanley v. Illinois, 405 U.S. 645, 656-57 (1972).
21.
21. Government brief, pp. 24-26; Jones brief, pp. 17 ff.; Brief for Georgia Legal Service Program as Amicus Curiae, p. 24, n. 7; ACLU brief, pp. 12-13.
22.
22. Government brief, pp. 22-23.
23.
23. The government's brief, more sensitive to this issue than the Court, tried to hide the issue by speaking solely of the passage of “some time” between the act and a subsequent commitment hearing. Ibid., p. 52, n. 43.
24.
See also Note, New York University Law Review, 57:281 (1982).
25.
25. Whether the commitment was punitive or for treatment had resulted in several conflicting opinions. See Jones v. United States, 396 A. 2d 83 (1978), r'vd 411 A. 2d 624 (1980), r'vd en banc 432 A. 2d 364 (D.C. App. 1981).
26.
The data are not clear, but there is surely no unanimity that NGRIs are themselves really dangerous, if by “dangerous” we mean violent. See pp. 121-22 of the present article.
27.
Donald Herman and Yvonne Sor, “Convicting or Confining? Alternative Directions in Insanity Law Reform: Guilty but Mentally Ill versus New Rules for Release of Insanity Acquittees,”Brigham Young University Law Review, p. 622 (1983); Virginia Insanity Defense Plea Task Force, “Final Report,” which includes NGRIs charged with serious property damage.
28.
28. Hermann and Sor, “Convicting or Confining?” p. 585.
29.
29. 102 Sup. Ct. at 3050. In n. 14, the Court quoted from an opinion written by Warren Burger when he sat on the District of Columbia Circuit Appeals Court that a watch thief was dangerous, if not violent.
30.
See Slovenko, “Disposition of the Insanity Acquittee,”Journal of Psychiatry and Law, 11:97 (1983).
31.
31. Some decisions on civil commitment have required the state to prove a recent overt act demonstrating commitability. Some acquittees may be suicidal and hence not qualify as criminal. Most decisions, however, will involve some set of facts that, as a matter of creative interpretation of the penal code, could be seen as criminal. In any event, most such acts would qualify as dangerous under the Court's broad definition here.
32.
32. Statement on the Insanity Defense.
33.
33. 103 Sup. Ct. at 3050 n. 13.
34.
34. Ellis, “Commitment of Insanity Acquittees,” pp. 12-13.
35.
35. “There is no convincing empirical evidence either supporting or refuting [deterrence]. We may nevertheless assume safely that there are murderers... for whom the threat of death... undoubtedly is a significant deterrent.”Gregg v. Georgia, 428 U.S. 153, 186 (1976).
36.
36. Ellis, “Commitment of Insanity Acquittees”; see also Note, New York University Law Review, 57:281 (1982). Some courts have expressly articulated this as a reason for upholding stricter rules against NGRIs. See, for example, Warren v. Harvey 632 F. 2d 925, 932 (2d. Cir. 1980).
37.
Morris , “Dealing Responsibly with the Criminally Irresponsible”; National Mental Health Association, National Commission on the Insanity Defense, Myths and Realities (Arlington, VA: National Mental Health Association, 1983).
38.
38. Henry J. Steadman, Mark L. Pantle, and Richard A. Pasewark, “The Use of the Insanity Defense,” in “The Insanity Defense in New York” (New York State Department of Mental Health, Albany, NY, 1983), p. 37.
39.
39. Richard A. Pasewark, “Insanity Plea: A Review of the Research Literature,”Journal of Psychiatry and Law, vol. 8 (1981); see also Richard A. Pasewark, Mark L. Pantle, and Henry J. Steadman, “Detention and Re-Arrest Rates of Persons Found Not Guilty by Reason of Insanity and Convicted Felons,”American Journal of Psychiatry, vol. 139 (1982); Michael Criss and D. Robert Racine, “Impact of Change in Legal Standard for Those Adjudicated Not Guilty By Reason of Insanity 1975-1979,”Bulletin of the American Academy of Psychiatry and the Law, vol. 8 (1980).
40.
40. William Dobbs and Joseph Henneberry, “A Special Report on the Commitment of Persons Found Not Guilty by Reason of Insanity,” mimeographed (Washington, DC: St. Elizabeth's Hospital, 1983).
41.
41. Pasewark, “Insanity Plea.”
42.
Note, Georgia Law Review, 15:1065 (1981).
43.
Note, Harvard Law Review, reported at that time that 26 jurisdictions put the burden of proof of insanity upon the defendant.
44.
44. In 24 states and the federal system.
45.
45. 103 Sup. Ct. at 3050.
46.
46. Id. at n. 11.
47.
47. See fn. 27 of the present article.
48.
48. See Jeffrey Rogers, “1981 Oregon Legislation Relating to the Insanity Defense and the Psychiatric Security Review Board,”Willamette Law Review, vol. 11 (1982).
49.
49. Statement on the Insanity Defense, p. 17.
50.
50. This is already occurring. See, for example, State v. Escobar, — N.Y. 3d —, — N.E. 2d — (1984). See also State v. Lafferty, — Conn. —, — A. 2d — (1984). (A pathological gambler is dangerous to property and hence committable as an NGRI even though the statute mentions only “danger to himself or others.”) People v. Gamble, — III. App. 3d — 453 N.E. 2d 839 (1983); Hickey v. Morris 722 F. 2d 543 (9th Cir. 1983).
