Currently, the requirements for insanity vary by state. The typical standards require that a person be unable to differentiate between right and wrong at the time of the crime. The inability to appreciate the wrongfulness of conduct must be the direct result of a mental disease or defect. Such defects typically include psychotic disorders, mood disorders and organic conditions such as mental retardation. Virtually no state allows sociopathy to be grounds for an NGRI defense, and voluntary intoxication cannot by itself end culpability. Only a few states still contain the volitional question.
At the federal level, the Supreme Court, in USC Title 18, Chap 1, Sec 17, stated:
It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.
Some states have another legal option aside from insanity: guilty but mentally ill (GBMI). On its face, this seems to be a good idea, as jurors have several options. However, there are two inherent problems. First, juries have two choices that find a person guilty, but only one that finds them innocent, leading away from giving the benefit of doubt to the defendant. Additionally, the GBMI finding assumes that prisons will engage in the same level of treatment as a hospital, so that a defendant can be equally well-served in either setting. A GBMI finding also yields a set sentence, which the person will serve even if completely psychiatrically stabilized. Alternatively, the defendant may have to be released even if they are still ill.Loopholes and Pitfalls
The existence of an insanity defense has always been controversial. There have been several attempts to "eliminate the loophole" and thereby force mentally ill individuals into prison. Several state decisions have noted that criminal intent is an absolutely necessary part of any crime. In recent years, some states have redefined their laws to focus more tightly on the mens rea, or guilty mind. Under those laws, a person must, as a result of a mental illness, lack the ability to willingly or knowingly commit an act. This looks at criminal intent, rather than psychiatric diagnoses, therefore claiming an end to criminals getting off free.
Of course, as previously noted, the truth is that there is no evidence to suggest that this defense has ever been widely misused. A minority of states (Montana, Idaho, Utah, Kansas and Nevada) have omitted the insanity defense per se entirely, instead allowing mental state to be raised only as a mitigating factor.
Some people favor the abolition of the insanity defense for reasons unrelated to political gain. They argue that far too often (certainly in our experience) a person who is chronically mentally ill is automatically found NGRI, even when the evidence would not convict them of a crime (Halpern, 1992). In addition, some critics see it as a simple plea bargain that saves time for the lawyers and judges and locks up a possibly innocent person for many years.
We would argue that in the absence of laws to force hospitalization of mentally ill offenders, many would go to prison and be victimized. This goes against all historical and humane thinking that some people truly cannot be held to general standards of conduct because of mental conditions over which they have no control.Burden of Proof
Defining the burden of proof presents another issue in the insanity defense. Who has to prove what and how do they prove it? Since the average citizen is presumed to be sane, if they claim insanity, who decides? Does the prosecution have to prove defendants are not insane, or do the people who ask the court to find them not guilty by reason of insanity have to justify themselves? Most states have gone with the latter, but it certainly has not always been that way. In the aftermath of the Hinckley case, many states shifted the burden of proof to the defendant.
There has also been discussion on the amount of proof required. Should insanity be proved only by 51% (e.g., a preponderance of evidence), or does it need a standard of "beyond a reasonable doubt"? Generally, laws give the benefit to the accused and logically would not require more than the preponderance standard. This issue was addressed when, in State v Coffman (1864), California was the first jurisdiction to review M'Naughten officially. Soon after, in 1879, the Alabama Supreme Court, in Boswell v State, rendered an opinion that we see as holding to the spirit of the original insanity laws and which, in our opinion, reads well:
Since an unsound mind cannot form a criminal intentåinsanity, when proved, is a complete defense, but no defense is more easily simulated, and the evidenceåmust therefore be carefully and considerably scannedåThe workings of a diseased mind are so variant that it is difficult to lay down an absolute rule for the government of all cases. Each case must depend, more or less, on its own particular factsåIt ought to be proved thatåat the time he committed the act, he did not consider it a crime against the laws of God and natureåIf there is any reasonable doubt as to sanity, the jury should acquit him.Concluding Thoughts
Currently, insanity is a well-established defense in this country. Although efforts to eliminate this way of escaping punishment will continue to generate attention, it is unlikely that our laws will eliminate the essential difference between those who choose to break the law and those who cannot choose.