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Tuesday, December 04, 2012

Disability Rights and the Insanity Defense

Thanks to Dan for inviting me back.  Happy to be here.

Last week, the Supreme Court denied cert. in Delling v. Idaho, a case that presented the question whether a state could constitutionally abolish the insanity defense.  Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissented from the denial of cert.

The constitutional issues presented by Delling are very interesting, but they're not what I want to talk about.  At least for the moment, I'm more interested in the following question: What does a disability rights perspective imply for whether we should have (or must have) an insanity defense?  I will admit I've been somewhat frustrated through the years that nobody has written an article that comprehensively addresses this question -- though some folks, notably Michael Perlin, have addressed important aspects of it.  Though I keep thinking I might write that article, the project keeps moving back in the queue.  So let me just use the occasion of Delling to throw out a couple of ideas about the question.

It seems to me that there are three ways that the existence of the insanity defense might serve disability rights interests.  I have to say, though, that I find none of them fully persuasive as a reason for retaining the defense.

First, it is undeniable that efforts to abolish and limit the insanity defense have often been driven by -- and have fed -- stigma against and stereotypes about people with mental illness.  Perlin's done a great job of showing this.  Retaining the insanity defense might thus be seen as fighting the good fight against these pernicious attitudes.  But it seems just as plausible to me that the insanity defense actually entrenches stigma and the stereotypes associated with people with mental illness.  The defense arises only when an individual with mental illness has taken an act that would otherwise constitute a crime, and it requires defense counsel to prove that the defendant's mental illness caused the act to occur.  It seems to me almost inevitable that the successful presentation of an insanity defense will have at least some tendency to entrench the widely-held public view that mental illness leads to criminality and violence.

Second, one might treat the insanity defense as essentially a reasonable accommodation for people with mental illness in the criminal justice system.  The argument would be that the criminal justice system discriminates against or fails to take account of people with mental illness, so the insanity defense is necessary to "rectify the tilt" (in the words of my friend Chai Feldblum).  The analogy here would be to reasonable accommodation in employment.  Employers purchase desks with some picture of the "ordinary" employee in mind; they don't think of the employee who uses a power wheelchair and a ventilator, who needs a nonstandard desk configuration.  Requiring the employer to purchase a desk that fits that employee may cost money, but it merely rectifies an inequality of the employer's own creation.

Does that story fit the insanity defense?  Is the criminal justice system biased against people with mental illness?  Does it fail to take them into account?  To some extent, the answers to these questions are surely yes.  Many (though far from all) people with mental illness end up in the criminal justice system as a result of low-level crimes that might not trigger criminal justice involvement at all -- and almost certainly would not lead to conviction and sentence -- if they did not have mental illness.  This is the widely decried phenomenon of criminalization of mental illness, which is in part a response to disinvestment in mental health services outside of the criminal justice system.  Moreover, people with mental illness may, because of their condition, be less able in some circumstances to protect themselves against exploitation and trickery by police and prosecutors.  And finally, particularly but not only in capital cases, judges and juries may impose harsher sentences on people with mental illness based on exaggerated fears that those conditions create an increased risk of future criminality.

I think these are good reasons to bar the imposition of the death penalty on people who were experiencing mental illness at the time they committed their crimes.  (The Supreme Court relied in part on similar reasons in barring the imposition of the death penalty on people with intellectual disabilities.)  And they're also probably good reasons to take low-level offenses (certainly for people with mental illness, perhaps for others) out of the criminal justice system.  But in the broad middle range of cases -- involving reasonably serious, but not capital, crimes -- I'm not convinced that convictions of defendants with mental illness always or even mostly reflect bias.

Finally, one might treat the insanity defense as a different kind of reasonable accommodation.  Instead of responding to bias in the system of investigating and adjudicating crimes, the defense may serve to ensure that people with mental illness get served in the mental health system (which, by hypothesis, can provide effective treatment) instead of the criminal justice system (which often cannot).  The problem with this argument is that, thanks to Jones v. United States, an insanity acquittee can be immediately and automatically locked up in a secure psychiatric facility -- for longer, even much longer, than any sentence she could have served had she been convicted.  In many (though far from all) cases, individuals so committed could receive effective treatment in community-based mental health settings, but their status as insanity acquittees makes it practically very difficult to get them out of state psychiatric institutions and into community programs.  From the disability rights perspective that opposes unnecessary institutionalization, a conviction and a reasonably short sentence might well be preferable to an insanity acquittal.  A longer sentence, or confinement in a jail or prison that exarcerbates the mental illness, would change the calculus, but my point is that the insanity defense fails to serve disability rights interests in a significant fraction of cases.

I think the real problem is that the insanity defense comes far too late in the process to address the criminalization of mental illness.  Criminalization occurs because of a lack of adequate investment in community-based mental health services -- both those services that provide day-to-day support and treatment that can prevent antisocial behavior and mental health crises, and those services that respond to crises without triggering criminal justice involvement or institutionalization.  I think those are the big, key issues of mental health and the criminal justice system.  The insanity defense is, to a large extent, just a sideshow -- though one that draws disproportionate attention from scholars and others.

Anyway, these are just a few thoughts.  I'm very interested in others' reactions, in comments or offline.

Posted by Sam Bagenstos on December 4, 2012 at 09:37 AM in Criminal Law | Permalink


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Great post. Although she does not discuss mental illness, Betsey Nevins-Saunders discusses some analagous issues of competancy and capacity from a disability-rights perspective for defendants with mental retardation. Elizabeth Nevins-Saunders, Not Guilty as Charged: The Myth of Mens Rea for Defendants with Mental Retardation, 45 U.C. Davis. L. Rev. 1419 (2012); Elizabeth Nevins-Saunders, Incomprehensible Crimes: Defendants with Mental Retardation Charged with Statutory Rape, 85 N.Y.U. L. Rev. 1067 (2010).

Posted by: Adam Zimmmerman | Dec 4, 2012 2:54:25 PM


Good question. They're obviously related questions, because there's reason to think that when states tighten the insanity defense a lot of folks who would have been found not guilty by reason of insanity end up getting found incompetent to stand trial. Those folks also end up in secure psychiatric facilities, like insanity acquittees, and can stay for long periods of time. In some countries (like Israel, I believe), the criminal justice system uses supported decisionmaking to enable defendants to go through the ordinary criminal process, even in circumstances in which they might be found incompetent to stand trial and institutionalized here. That might not be constitutional in the US, and it might or might not be a good idea as a matter of policy, but I'd be interested to know more about how it's worked.

Posted by: Sam Bagenstos | Dec 4, 2012 2:38:02 PM

Great post Sam. I am curious if you have thought about the disability rights take on the related but separate question of competency to stand trial for those with psychiatric illnesses...

Posted by: I. Glenn Cohen | Dec 4, 2012 2:14:18 PM

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