University Times

The debate over the insanity defense in the United States is clouded by public misconceptions — about mental illness itself, and about what happens to defendants acquitted by reason of insanity, according to attorney and University of Texas professor Jennifer S. Bard.

“Jurors tend to imagine that such defendants will simply walk away” — which is understandable, given that juries in many states are not told what will happen to people acquitted by reason of insanity, Bard said during an Oct. 17 lecture at Pitt’s law school.

In fact, “the actual statistics show that defendants who were found not guilty by reason of insanity actually spent more time confined to institutions than people who were convicted of crimes and served sentences,” she said.

Bard, an assistant professor and research director at the Institute for the Medical Humanities at the University of Texas, delivered the third Mark A. Nordenberg Lecture in Law and Psychiatry. The law school and the Center for Bioethics and Health Law presented the lecture.

Bard cited three other common myths about the insanity defense:

• Such defenses are common. Fact: A “big body of research” shows that the insanity defense is raised in just 5-14 percent of homicide cases, she said.

• Insanity defense criteria are so complicated that defense attorneys easily can fool juries into acquitting clients. “Actually, there is some really interesting research showing that the vast majority of successful insanity defenses come in bench trials. It’s primarily judges who are most sympathetic to insanity defenses,” Bard pointed out.

• The insanity defense usually is used in murder trials. Fact: Murder cases account for fewer than one-third of insanity defenses, Bard said. More often, Bard said, the insanity defense figures into trials for minor offenses such as shoplifting and assaulting a police officer — unfortunate but predictable occurrences when mentally ill offenders are repeatedly convicted and released, rather than being treated for the root causes of their anti-social behavior, argued Bard.

She cited studies from the 1990s revealing that 70,000 people with severe mental illnesses resided in U.S. public psychiatric hospitals, while America’s prisons and jails housed 283,000 severely mentally ill prisoners.

Ironically, she noted, prison inmates are the only Americans who enjoy a Constitutional right (under the Eighth Amendment forbidding cruel and unusual punishment) to health care — not that mentally ill prisoners necessarily receive appropriate care, Bard said.

The key question in the insanity defense controversy, according to Bard, is this: Do Americans believe that individuals can be so mentally ill that they are not responsible for their actions?

Her answer: Not entirely, and certainly not in Texas.

Bard recounted the case of Andrea Yates, the Texas woman convicted of murder (but spared the death penalty) last March for drowning her five children.

Yates “was suffering from schizophrenia and depression well before she had any children. Having children just exacerbated a bad situation,” Bard said.

Two weeks before the killings, Yates’s husband Rusty desperately sought treatment for his wife. Recognizing Andrea’s symptoms of severe postpartum depression from previous pregnancies, he pleaded unsuccessfully with Andrea’s doctors to put her back on anti-depressants following the birth of their fifth child.

On the day that she drowned her children one by one in a bathtub, Andrea Yates was not taking any medications, nor had she been prescribed any since her previous bouts with depression and schizophrenia.

“There was speculation at first about whether she would be tried at all, she was so obviously mentally ill,” Bard said. Once prosecutors decided to push for a murder conviction, they made what Bard called “a very smart tactical decision”: They sought the death penalty.

“Research has shown that once you get a panel of jurors qualified as death penalty jurors — that is, jurors who say they would be willing to consider the death penalty — you automatically have a group of jurors who are highly suspicious of the insanity defense,” said Bard.

For Yates’s attorneys to mount a successful insanity defense under Texas’s strict “knowledge-based” criteria, they had to convince the jury either that Yates did not know what she was doing when she killed her children, or that she didn’t know that it was wrong. “Irresistible impulse” because of mental illness is not an accepted defense in Texas and many other states.

“Andrea Yates very systematically killed her children,” Bard said. “She took them one by one, drowned them, and then put them in bed. She didn’t stop at the first one or the second one, she went right through to the fifth. And, in Texas, that was enough to show that she had knowledge.”

Had Yates killed only one of her children in a frenzied attack, Bard suggested, “even by Texas standards she might have been found not guilty.”

Bard argued: “I think it would be an important change to the insanity defense for there to be an acknowledgement that it is possible to have knowledge but not to be able to do anything about it. And that it is possible, just as it is possible to have degrees of kidney disease or heart disease, to have degrees of mental illness that affect the thought process and [that] should be taken into consideration while assessing criminal responsibility.”

Under Texas law, Bard noted, juries are not told what will happen to defendants acquitted by reason of insanity.

Texas’s “knowledge-based” standard for insanity defenses dates back to a Victorian cause celebre: the 1843 murder trial of a 29-year-old Scottish laborer named Daniel M’Naghten.

Under the delusion that British Prime Minister Sir Robert Peel was the devil and leader of a vast conspiracy to destroy the world, M’Naghten stalked and tried to assassinate Peel, but shot and killed Peel’s private secretary instead.

In the ensuing murder trial, M’Naghten’s “dream team” of distinguished barristers was supported by influential citizens who believed it was time to replace Britain’s existing “wild beast” insanity defense. (If a murder trial defendant snarled, growled, tore his hair and otherwise acted like a wild beast, he stood a good chance of being acquitted and committed instead to an insane asylum.)

M’Naghten was acquitted and sentenced to life imprisonment, in effect, in London’s Bethlehem Hospital (a.k.a. Bedlam) after his attorneys convinced jurors that M’Naghten had been unable to distinguish right from wrong.

Queen Victoria, having herself survived several assassination attempts, was not amused. “How could [M’Naghten] have been found not guilty? He did it, didn’t he?” she reportedly asked — anticipating questions that many Americans would ask 140 years later, when John Hinkley Jr. was found not guilty by reason of insanity after wounding President Reagan and his press secretary, and killing a Washington, D.C., police officer.

Victoria asked the House of Lords to recommend a test of legal insanity. The Lords came up with the Right or Wrong Test: A person was insane if he did not know what he was doing, or if he did not know that it was wrong. This standard crossed the ocean to America, where it remains in effect in Texas and some other states.

But a majority of states, including Pennsylvania, have replaced the strict “knowledge-based” criteria for insanity defenses with the hybrid standard of “guilty but mentally ill.”

“This standard is very satisfactory to jurors because it acknowledges that a person committed a crime, but it also recognizes that they were mentally ill when they did it,” Bard said.

However, the standard defies logic, according to Bard. “If we believe as a society that there are people who, because of mental illness, are not responsible for their actions, then it doesn’t make sense to create a category of people who are mentally ill but are responsible for their actions anyway,” she said.

Last summer, as part of a federal program signed into law by President Clinton in 2000, Pennsylvania and most other states established mental health courts for offenders diagnosed with mental illnesses.

Christine Martone, chief psychiatrist for the diagnostic clinic for Allegheny County’s mental health court, said her clinic evaluates local defendants and draws up treatment plans.

“The carrot for the defendant is that if they follow the treatment plan, they will stay out of the criminal justice system,” Martone said in an interview with the University Times following Bard’s lecture. “If they don’t follow the plan, they are brought back to jail and tried in a regular court.”

Allegheny County’s mental health court deals with minor crimes and repeat offenders, not homicides and other serious offenses, Martone said.

— Bruce Steele