A Precarious Time For The Insanity Defense

Even if Oregon’s system remains in place, however, it will still be true that the vast majority of people who suffer from mental illness are treated by the criminal system as if they are in perfect control of their actions. I have represented clients who were clearly having psychotic breaks during certain illegal actions, and I have been met with the same meaningless line from prosecutors: “He needs to be held accountable for his actions.” But what can accountability even mean when a person has no recollection of ever violating the law, and, after treatment, returns to his calm, law-abiding self? What can putting that person in prison possibly do? It will, of course, increase the chances that corrections officers, trained to get prisoners to submit to authority rather than treat mental illness, will beat my client, throw him into solitary confinement, or worse. But will it engender accountability? Safety? Justice?

Regardless of whether Montwheeler suffered from a qualifying mental illness, he was 6 years old when his father murdered his mother. This fact alone would never qualify him as insane, but surely it had an impact on his development, and most likely played a role in his subsequent behavior toward intimate partners. Instead of broadening their definitions of what qualifies as diminished capacity or insanity, or interrogating how we respond to such people before and after they harm others, many states have gone in the other direction, eliminating the already near-impossible standard of insanity.

In the first argument of this term, the U.S. Supreme Court considered whether states may abolish the insanity defense, examining the case of James Kahler, who was sentenced to death in 2011 for killing four family members. His lawyers said he had such severe depression that it was  impossible for him to understand reality or to distinguish right from wrong. But because Kansas eliminated the insanity defense about two decades ago, Kahler was barred from raising this defense. According to the New York Times, Sarah Schrup, a lawyer for Kahler, said that was a radical departure from American legal traditions. “For centuries,” she said, “criminal culpability has hinged on the capacity for moral judgment, to discern and to choose between right and wrong. The insane lack that capacity.” Kansas, Idaho, Montana, and Utah have all abolished the insanity defense, although defendants in those states may still argue that they lacked the required intent to commit the crime with which they were charged.

Justice Stephen G. Breyer pointed out that this means that people are not culpable if they truly did not know what they were doing (if, for instance, they killed a human being under the delusion that they are killing a dog). But they are culpable if they do not know that their actions are wrong (if, for instance, they knew they were killing a human but believed a dog told them to kill a that human).

“What’s the difference?” he asked. “It’s quite deep, this question.”

Justice Samuel A. Alito Jr. showed a lack of understanding about mental illness, one that is shared by many Americans. He said that Kahler’s actions did not appear to be those of an insane person. “This is an intelligent man,” Justice Alito said, as if intelligence were impossible for a mentally ill person. “He sneaked up on the house, where his wife and her mother and his children were staying. He killed his ex-wife. He killed her mother. He executed his two teenage daughters. One of them is heard on the tape crying. He, nevertheless, shot her to death.” This is evidence of extreme cruelty for a sane person, but what does it mean for an insane person?

“All acts of extreme violence, on some level, seem insane,” writes Fischer. “But under the law, there is a sharp distinction between mental illness” and personality disorders, such as psychopathy, “which manifest in traits like a lack of empathy, a transactional nature, [and] emotional volatility.” “What we don’t want is the insanity defense to be redefined where there’s this influx of new diagnoses,” one mental health official told Fischer. Personality disorders are excluded, she added, without explanation, “because those folks—that’s who the prison system is for.”

One crucial distinction between a condition like schizophrenia and a personality disorder like psychopathy is that more effective treatments exist for the former group of people. But the existence of such disorders, the fact that they influence people’s behavior, does not depend on our ability to cure them, nor does it depend on whether we as a society decide to condemn the people afflicted by them as criminals or treat them as patients. This is what the American Psychiatric Association argued in its amicus brief in the Kahler case. “Amici take no issue with the view that the question presented is a legal and moral issue,” they write. “At the same time, a scientific understanding of mental illness and its effects lends weight to the arguments in favor of recognition of the insanity defense as constitutionally required.”

One of the first things law students learn in criminal law class is that a person whose body is used as a projectile by another person to cause harm cannot be criminally prosecuted. This seems intuitive to most students. But somehow, if a person’s body is controlled by a mentally ill brain, not another person, it no longer makes sense. A scientific understanding, not panicked moralizing, would indeed be a good place to start.