Forcing the Insanity Defense on Unwilling Defendants: Best Interests and the Dignity of the Law

Abstract

Although the choice of which plea to enter is reserved, under common law and most statutory law, to a criminal defendant, 17 of the 48 jurisdictions that retained the insanity defense at the time of this study permit that defense to be imposed over the objections of defendants. The authors present the results of a survey of the literature, statutes, and case law that deal with forced insanity defenses, as well as a national survey of attorneys general and state forensic mental health forensic program directors, which indicate that over a third of jurisdictions permit the imposition of the insanity defense on unwilling defendants. They also present the results of a detailed survey of 50 consecutive defendants evaluated for sanity in Colorado. While respondents from the jurisdictions (including Colorado) that permit forced insanity defenses estimate that such imposition is very rare, the results from the Colorado survey indicate that, at least in that state, it represents 32% of insanity defenses initially entered. The major reason for permitting such imposed defenses is a policy preference for preserving the dignity of the law over the rights of individual competent defendants. The authors discuss the implications of that position for forensic evaluators.