The past few weeks have rendered two unfortunate opportunities for everyone to start discussing what they always discuss when someone commits an unfathomable crime: the insanity defense.
On Tuesday, Jared Lee Loughner pleaded guilty to last year’s Tucson shooting that killed six and wounded 13, including then-Rep. Gabrielle Giffords. Last week, 24-year-old James Holmes faced his arraignment for July’s Colorado movie theater shooting that killed 12 people and injured 58.
Holmes has not yet entered a plea and therefore has the country wondering the same thing everyone wondered about Loughner last year: Will he plead not guilty by reason of insanity? And why did Loughner — who spent more than a year in a prison hospital being treated for schizophrenia before he could stand trial — not choose the insanity defense?
How the United States determines not guilty by reason of insanity
Currently, 46 states allow the insanity plea — including Arizona, where Loughner is being tried, and Colorado, where Holmes will stand trial. Kansas, Montana, Idaho and Utah are the exceptions. According to a 2000 article in the Journal of Psychiatric Practice, most insanity plea statutes sound something like this:
“A defendant must be found not guilty by reason of insanity if, at the time of the alleged offense, and as a result of a severe mental disease or defect, he did not know what he was doing, or that what he was doing was wrong. For the purpose of this statute, ‘mental disease or defect’ does not include a condition for which the only, or primary, manifestation is chronic antisocial or illegal behavior.”
Most states follow either the M’Naghten rule or the Model Penal Code. The M’Naghten rule, according to Cornell University Law School, states that there is a presumption of sanity, unless the defense can prove that “at the time of committing the act, the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong.” A modified version of this rule that includes what’s known as the irresistible impulse rule will apply to Holmes’ trial if he chooses to plead not guilty by reason of insanity. The irresistible impulse rule states that the defendant could not control his actions and therefore should not be held liable for them.
The Model Penal Code says that a defendant is not responsible for a crime if a mental disease or defect resulted in his inability to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
The case that changed everything
In 1981, John Hinckley Jr. attempted to assassinate Ronald Reagan and was found not guilty by reason of insanity. This incited such uproar throughout the country that Congress swiftly passed the Insanity Defense Reform Act, which created more obstacles for defendants who wish to use the insanity plea. Thanks to the act, the burden of proof lies on the defendant rather than the government, and the defendant must provide “clear and convincing” evidence that he, due to a mental disease or defect, was unable to know the criminal act was wrong.
Loughner and Holmes’ mental states
Before the plea, defendants must be found competent to stand trial. Loughner was found incompetent and was being treated for schizophrenia in a prison hospital for the past year until he recently was determined competent to stand trial and pleaded guilty. According to the Los Angeles Times, a federal judge concluded that Loughner currently understands that he’s responsible for opening fire during a congressional constituent meeting in a parking lot.
Holmes has been arraigned and charged with 142 criminal counts, including 24 counts of murder, but he has not yet pleaded guilty or not guilty. Following the shooting, Holmes has exhibited odd behavior and unusual affect in court and at the police station. He appeared dazed and sleepy, seemingly unable to focus, at his first court appearance; and ABC reported that in the police station before the court appearance, Holmes stared at walls, eyebrows twitching, and made hand puppets with the evidence bags that were covering his hands to preserve possible gunshot residue. News reports stated that prior to the shooting, Holmes was receiving treatment from a psychiatrist who specializes in schizophrenia, but it’s unknown whether this was what Holmes was being seen for.
Like Loughner, Holmes would first have to be found competent to stand trial before pleading not guilty by reason of insanity. Christian Science Monitor cited Daniel Filler, a criminal law expert and professor in the Earle Mack School of Law at Drexel University, as saying that the Colorado insanity defense clause requires two things from the defendant: to prove that he was suffering from a genuine mental illness at the time of the crime and that he did not know right from wrong.
Why the insanity plea is not a popular defense
While the insanity defense frequently pops up in conversations following tragic criminal acts, it’s not very common and is actually only used in about 1% of felony trials. The reason: It’s nearly impossible to win a case with it.
Infamous murderers Ted Bundy, John Wayne Gacy and Jeffrey Dahmer all attempted the insanity defense and failed. It’s not hard to see why: In a country that’s deeply rooted in individual responsibility, the defense would need an extremely open-minded jury to decide on “not guilty” after being presented with graphic photos of the victims and disturbing evidence of the crime.
Jurors also often believe that the defendant will be released early if he or she is found not guilty by reason of insanity. David Bruck — a clinical professor of law and director of the Virginia Capital Case Clearinghouse, a death penalty defense legal clinic at the Washington & Lee School of Law — wrote in the New York Times that, if found not guilty by reason of insanity, the defendant can still be kept locked up, potentially for life, in a secure psychiatric facility. However, the Supreme Court has ruled that judges aren’t required to explain any of this to the jury, so jury members are often left fearing what will happen if they decide the defendant fits the insanity defense standards. “The result,” Bruck explains, “is a legal system that almost guarantees that jurors will reject even the most valid insanity defense out of misplaced fear of putting a violent person back on the street.”
If neurological technology was more advanced, there’s a possibility it could provide evidence for or against the insanity defense. However, there are currently no biomarkers or diagnostic tests that can adequately indicate whether the accused understands right from wrong, or even if he or she has a specific mental disorder.
Lastly, some defendants actually refuse to use the insanity defense because they don’t want their actions to be perceived as “crazy” or unjustified. One example of this is Ted Kaczynski, aka the “Unabomber,” who prohibited his attorneys from questioning his competence or sanity in the courtroom. They may find the insanity label humiliating, may not want to “weaken” their bad reputation, or may truly feel their actions are justified and perceive the insanity defense as an excuse for an action that shouldn’t need an excuse.
With these odds, it’s no surprise that Loughner chose to plead guilty, but the insanity defense — while rare — is still a possibility for Holmes. When questioned about Holmes and his defense, forensic psychiatrist Steven Pitt — who was a consultant to prosecutors on the 1999 Columbine High School shooting — told USA Today: “It’s the only thing they have. It’s a defense of last resort.”