For more than one and a half centuries, from the first insanity defense commitment of John Hadfield in England in 1800 through the mid-1960s, insane defendants (those not guilty by reason of insanity, or NGRIs) were automatically and indefinitely committed to a secure psychiatric facility until the state determined that they could be released. Until the mid-1960s, most were never released regardless of their crime. Treatment for NGRIs then and today mirrors the standard psychiatric treatment of the time—ranging from simple confinement in pretreatment eras to increasingly more sophisticated inter-ventions such as those available starting in the 1950s. Today, most people found that NGRIs in the United States and elsewhere have a major mental disorder such as schizophrenia or bipolar disorder, and their treatments are at least initially as inpatients in a public psychiatric hospital. Due to legal changes from the 1970s onward, states that take custody of this population must also provide them with medical and mental health care whether they are inside or outside the hospital.
The Role of the Physician
Mental illness has for centuries been considered a mitigating circumstance in criminal behavior. Beginning in England in 1760, physicians specializing in madness have testified before the court that an individual’s criminal responsibility could be diminished due to mental state. While such testimony was not an insanity defense per se, the early role of the physician as a court expert established medicine’s domain, which continues today in many criminal trials throughout the world. Few defendants are found not criminally responsible without psychiatric testimony, confirming the long-held view that mental disorder is a medical illness and that responsibility for treatment lies with the medical profession. Today, while psychologists and social workers are included in evaluation, treatment planning, and service delivery, it remains the physician’s respon-sibility to decide whether a defendant is mentally ill, to prescribe medications—the treatment of choice, and to recommend the confinement or release of an insane defendant.
Treatment for NGRIs is delivered primarily by the public mental system. The first public mental hospitals in the United States were built after the 1830s, and there was no distinction between patients committed by family and those brought in by law enforcement. Insanity was used interchangeably to refer to all patients who were believed to be unable to make decisions due to mental illness. As suspicions rose about the use of civil commitment for inappropriate motives, such as acquiring family wealth or obtaining a divorce, the laws were changed in the late 1800s to require hearings prior to civil commitment, at which time the patient could object. These concerns were not directed at the legally insane patients. The concern with unfair commitments was short-lived as many states began allowing unrestricted, streamlined emergency commitments, as is still the case today. It was not until the judicial activism of the U.S. federal bench starting in the 1950s that civil commitment laws began to change, but these early federal decisions did not extend to NGRIs. This population of patients was committed for life and was not covered by the new, stringent civil commitment laws. Treatment continued unscrutinized in hospitals, and insanity acquittees could expect to spend their lives confined to the state hospital.
Public Policy on the Rights of the Insane
This period of complete neglect of the legal and treatment interests of the insane extended until 1966, when the U.S. Supreme Court ruled that convicted and hospitalized defendants were to be held to civil commitment standards. This holding was extended to NGRIs on the grounds that they had been denied equal protection due to lack of review of their automatic, indefinite commitment to maximum-security hospitals. The next year, the Court held that sex offenders were entitled to a hearing before being transferred from prison to a hospital after serving their sentence. The following year, the D.C. Court of Appeals held that insanity defendants were to be given the same proce-dural protections as other patients. In case after case, federal courts decided in favor of both NGRIs and convicted defendants with mental illness, requiring states to prove why continued commitment was necessary. As these new commitment laws were written, most states had the burden of proving that persons found NGRIs were mentally ill, dangerous, and in need of hospitalization. If treatments were not being provided, the state failed to meet the burden. Hearings were now required to review the continued hospitalization of all patients.
Prosecutors opposed to an insanity defense in a particular case were put in the awkward position of first arguing at trial that the individual’s mental disorder was not so severe as to require an insanity verdict and then following this with the argument that the mental disorder was so severe that the person acquitted should be involuntarily committed. Not surprisingly, many insane patients no longer met the criteria for commitment and were released. The lack of treatment and supervision they encountered is legend, and beginning in the late 1960s, states began releasing NGRIs who no longer met the criteria for commitment—mental illness and dangerousness. At the same time, the costs of inpatient mental health care continued to rise due in part to “right to treatment” cases. For myriad reasons, such as the lack of resources, the belief that treatment would be ineffective, and fear, there was considerable community resistance to treating this forensic population.
The relatively unsupervised release of insanity defendants who had, in many cases, been hospitalized for decades caused fear and concern among the general public. Complicating the issue, a number of states had notorious cases in which a former NGRI committed a particularly heinous crime, leading to a reconsideration of the release procedures of insanity defendants. States began to make the release procedures more stringent, placing more responsibility on the defendant. The landslide of legislative change accelerated with the 1983 insanity acquittal of John Hinckley for his attempted assassination of President Ronald Reagan (and serious injuries to other victims). Following this widely publicized case, most states tightened their insanity defense laws, shifting the burden of proof to the defendant; changing the test for insanity from the American Law Institute’s guidelines back to the more restrictive M’Naghten test; adopting guilty but mentally ill statutes; abolishing the affirmative insanity defense; and creating new, less defendant-friendly release procedures. Whether such legal reforms created the intended outcomes has been the subject of extensive research. While Hinckley did not start the retrenchment movement, his acquittal completed it.
Public Sentiment and the Insanity Defense
Research conducted from the 1960s through the 1980s reveals that the public views NGRIs as more dangerous than ordinary inmates, consistent with other research on public views of persons with mental illness as being dangerous. Therefore, little public sentiment exists to attend to the rights of NGRIs. Even when faced with overwhelming expert testimony that a defendant’s mental illness is so severe that he or she could not have known right from wrong, juries more often than not find a defendant guilty, perhaps hoping that they will receive treatment in prison. When asked following the trial why they rejected the insanity defense, jurors often state that although they do not dispute the evidence of psychosis, they are fearful that the individual will be released from the hospital.
As public opinion shifted away from reform favoring defendants’ rights, the courts turned away from defendants as well. What followed from 1983 to the present could be summarized as a refinement of procedures and laws regarding the insanity defense, within a context where standard psychiatric treatment is constitutionally required for NGRIs. In 1983, the Supreme Court ruled that an insanity acquittal for any crime is a presumption of dangerousness for purposes of commitment. In 1992, the Court held that NGRIs must be released if they no longer meet commitment criteria. An exception is made for convicted sex offenders, who can be involuntarily committed to a psychiatric hospital following completion of their sentence until their “mental abnormality” is cured. The implication of the Court’s ruling is that sex offenders can be treated by mental health professionals, even though there is lack of evidence for the efficacy of these treatments.
Treatment and Release
One effect of the documented reduction of insanity defense cases from the 1960s through to the present is the change in the NGRI population, affecting treatment needs in both the hospital and the community. While some defendants might have been able to “fake” psychosis in the early decades, this grew less likely as the fields of forensic psychiatry and psychology developed and specialized training became required. Both civil patients and NGRIs have always been prescribed treatments that are thought to be medically appropriate and necessary. Earlier interventions including psychosurgery and electroconvulsive treatment were invasive and performed by physicians While both interventions are still sparingly used today, the most common treatment for all mental illness is medication; like earlier treatments, it is fixed within the professional domain of licensed medical doctors. For inpatients and outpatients alike, some psychosocial treatments have always been available, although the only common treatment is psychotropic medication.
In terms of treatment options in public facilities, there is little difference among patients due to their commitment status. Nearly all jurisdictions maintain maximum-security hospitals, and most NGRIs begin their commitment in these types of facilities but are eventually transferred to less secure, less costly facilities. In some states, these transfers require multiple approvals, but the degree of real oversight is unknown. Most often, security changes are made with internal review boards. Outright release or conditional release of NGRIs is supervised to a greater extent than transfers, and the release process varies in complexity and criteria. Some states require extensive, multitiered reviews, while others allow the committing judge to grant the release. A few states have convened specialized boards to oversee all NGRI release decisions and supervision. If placed on conditional release, NGRIs are required to adhere to the prescribed treatment and can face revocation if they violate the terms of their release. Failure to adhere to treatment, along with psychiatric deterioration, is the most common reason for revocation, not re-offending.
Contemporary Issues and Developments
Today, defense attorneys and defendants alike will not necessarily opt for an insanity defense for a relatively minor offense, even if the defendant meets the criteria for an acquittal. So, while the court decisions of the 1960s resulted in the release of many long-term patients, this trend away from commitment was short-lived. The insanity defense fell into disfavor among defense attorneys, in large part due to closer scrutiny of defendants and stricter release procedures leading to a long period of hospitalization, and among the public, due to perceived fears of this population. There was a parallel influx of nonviolent persons with mental illness into the communities and the criminal justice system. Whereas between 1966 and 1983 the insanity defense was a viable defense for a wide range of defendants with concern about unusually long commitment, the new laws discourage its use for less serious offenders. The insanity defense with its expected long-term commitment is an attractive defense only for serious offenders who are facing long incarcerations if convicted. This leaves a large portion of persons with mental illness who are being cared for in the community finding themselves in minor scrapes with the criminal justice system.
Two major law and mental health initiatives of the late 20th and early 21st centuries are outpatient commitment and mental health courts, both of which are outgrowths of the real and the perceived influx of nonviolent persons with mental illness into the commu-nities and the criminal justice system. Outpatient commitment is not a new concept, but it has only recently been widely implemented. It is a form of leverage of persons who have a history of treatment noncompliance—accept treatment or be hospitalized. In some states, it is also a form of leverage of the legislature to provide resources for mental health treatment. Most of the early mental health courts accepted only nonviolent misdemeanants. Revisions of these courts and the newer courts began to accept felons as well, but these may be limited to nonviolent offenders. Mental health courts are a form of criminal justice system diversion for defendants with mental illness. It is unknown at this point the degree to which these diversion programs are taking the place of the insanity defense. It is well documented that there is a measured increase in psychotic disorders among jail inmates and the convicted prison population. While this may be due in part to better diagnostic work in jails and prisons, it is unlikely that this accounts for all of the increase. These observed changes parallel the decline in the use and success of the insanity defense. Persons with mental illness who in prior decades were acquitted and provided treatment in mental health facilities are perhaps now receiving treatment in branches of the criminal justice system—outpatient commitment, jail diversion programs, mental health courts, and jails and prisons. How states respond to the increased demand for psychiatric treatment both in and outside the criminal justice facilities is evolving. Some states have extensive “inpatient” and “community” mental health services throughout their prison system. Ironically, these states are often the same states that provide extensive community mental health services in general. At the same time, some states fail to meet the demand at all levels and fail to recognize that good treatment is good security.
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