John Hinkley, Jr. is back in the news again as his defense attorneys are going before the judge and asking that he be released from the mental hospital where he has resided for thirty years.  I was, I believe, 7 years old when Mr. Hinkley shot President Ronald Reagan and his press secretary James Brady (after whom gun control measure known as the Brady Bill is named).  NPR recent did a call in piece on Talk of the Nation about the insanity defense in general and specifically Mr. Hinkley and to a lesser extent Jared Lee Loughner, accused of shooting 13 people, including Congresswoman Gabby Giffords, and killing  six, including Federal Judge John Roll and a nine-year old girl.

Before talking about the insanity defense, it is important to remember two of the major components of criminal liability in the Anglo-Saxon tradition of Justice.  First you must have a prohibited ACT, generally called the Actus Reus, and then you must have a THOUGHT called the Mens rea.  These two parts are of equal importance when determining the guilt of the accused.  If you don’t have both, you have an accident or a tragedy but no crime.  Mens Rea comes in many flavors depending on the crime, from Negligence (Everyone knows this is bad and so should the accused) to Intentional (the accused meant for this very thing to happen).  The reason Mens Rea is so important is because as a society, we do not think people ought to be punished when they didn’t have the right thought in their head at the time.  From this perspective, the criminally insane are more like a force of nature.

People are extremely anxious about insanity defenses, but the danger in them cuts both ways and the benefit to them cuts both ways too.  Consider that, because you have to prove every element of a crime beyond a reasonable doubt, if a jury was only given two options, guilty or not guilty, and they are forced to commit to finding the mental state, when they found a defendant not guilty because he or she could not form the required mental state, the judge and state would have no choice but to release a potentially violent person.  Hence, society as a whole is better protected from future violence by allowing a third option:  not guilty by reason of insanity.  Whereby a jury can say, “Sure, you couldn’t form the right thought to commit the crime here (whatever that standard is in a particular state), but you’re still dangerous and should be housed in a mental institution until you can prove to the satisfaction of a judge that you are not a danger.”

Generally, someone accused of a crime will not attempt to raise the defense of insanity.  The reason being that there is no certain end when a person is going to get out of the mental institution.  As a result, the insanity defense for all practical purposes is only used when the accused is either facing life in prison or the death penalty.  Think about McMurphy in Ken Kesey’s One Flew Over the Cuckoo’s Nest: he games the system into getting himself committed to a Mental Ward after serving some period of time on a Work Farm and then finds he won’t get out until he is “cured.”  Generally, when a person is found not guilty by reason of insanity he or she ends up serving more time than they would have had he or she would have spent if they had been found guilty.  Moreover, rarely if ever does the court completely relinquish supervision of the defendant.

Because of our system of justice, we will not hold people criminally liable for actions they took when they were not in their right mind, but for reasons of safety, we will not allow those who are not guilty of such a crime to walk away from confinement, treatment, and supervision until we are sure they are safe to live among us again.  While the system is not perfect, it is certainly better than many alternatives which would sacrifice safety for justice or justice for safety.

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