Law and Human Behavior, Vol. 23, No. 3, 1999 Errata This article entitled 'Empirical Research on the Insanity Defense and At- tempted Reforms: Evidence Toward Informed Policy' by Randy Borum and Solo- mon M. Fulero originally appeared in Volume 23, Number 1 (February 1999). This article was printed with numerous references mistakenly omitted. Reprinted below is how the article should have appeared. Empirical Research on the Insanity Defense and Attempted Reforms: Evidence Toward Informed Policy Randy Borum1 and Solomon M. Fulero2 The paper addresses some common questions about the insanity defense and issues raised by commonly proposed "reforms." The first section begins with a brief descrip- tion of the insanity defense and the reasons for its existence in the law. It then examines some of the popular myths and public misperceptions surrounding the insanity de- fense. The next three sections discuss proposed "reforms" and the empirical research that addresses their effect. These reforms, including various procedural changes in definitions, burden of proof, and expert testimony, the institution of a guilty but mentally ill verdict, and the abolition of the insanity defense itself, are reviewed, along with relevant research findings and policy issues. Finally, the development of sound conditional release programs for criminal defendants found not guilty by reason of insanity is proposed as a reform option which could serve the objectives of enhancing public safety and access to appropriate treatment while continuing to meet the objec- tives of the insanity defense within criminal jurisprudence. Virtually all of us can recount the details of a well-publicized insanity defense case in our home state. For example, on January 26, 1995, a 26-year-old law student named Wendell Williamson armed himself with a rifle he took from his father's house. He then walked through the streets of a college town in North Carolina shooting at people in his path. By the end of this incident, two people were dead 1Department of Psychiatry and Behavioral Sciences, Duke University Medical Center, Durham, North Carolina 27710; e-mail: [email protected]. 2Department of Psychology, Sinclair College and Wright State University School of Medicine, Dayton, Ohio 45402; e-mail: [email protected]. 375 0147-7307/99/0600-0375$16.00/1 C 1999 American Psychology-Law Society/Division 41 of the American Psychology Association 376 Borum and Fulero (a university student and a local resident), and several others, including one police officer, were wounded. It quickly came to light in the media that the suspect had been treated for paranoid schizophrenia, but in recent months he had allegedly stopped taking his psychotropic medication. At trial, he put forth a defense of "not guilty by reason of insanity" (NGRI) and was found NGRI by a jury in the county where the shootings took place. During and after the trial there was strong public reaction to the incident, both to the jury's decision and to the insanity defense in general. Two state senators responded by proposing legislation to repeal the defense of not guilty by reason of insanity and replace it with a "guilty but mentally ill" (GBMI) provision. This controversial case, the public reaction to it, and the subsequent attempts to "reform" the insanity defense in North Carolina all mirror what has happened in other states such as Ohio and Arizona (Borum, 1997; Fulero, 1997; O'Connor & Bayer, 1997). This paper addresses some common questions about the insanity defense and issues raised by commonly proposed "reforms." The next section begins with a brief description of the insanity defense and the reasons for its existence in the law. It then examines some of the popular myths and public misperceptions sur- rounding the insanity defense, since they are commonly part of the impetus for, and discourse about, its reform. The subsequent three sections discuss proposed reforms and the empirical research that addresses their effect. These reforms, ranging from various procedural changes to the institution of a GBMI verdict and the abolition of the insanity defense itself, are reviewed, along with relevant research findings and policy issues. Finally, the development of sound conditional release programs for criminal defendants found NGRI is proposed as a reform option which could serve the objectives of enhancing public safety and access to appropriate treatment while continuing to meet the objectives of the insanity defense within criminal jurisprudence. THE INSANITY DEFENSE Doctrine of the Insanity Defense To establish that an individual is guilty of a crime, the state must prove at least two components: first, that the defendant engaged in proscribed conduct or committed the illegal act in question (referred to as actus reus); and second, that the defendant committed this act with criminal intent (referred to as mens rea)3. Different offenses may require different levels of intent. For example, in North Carolina, an indictment for a charge of murder requires a declaration that the defendant killed "willfully and with malice aforethought," whereas that element for man slaughter only requires that the killing be done "willfully." (North Carolina, 1998, §15-144). Similarly, in Ohio, an aggravated murder charge requires that the 3Block's law dictionary defines mens rea as "As an element of criminal responsibility: a guilty mind; a guilty or wrongful purpose; a criminal intent; guilty knowledge and willfulness" (p. 680). Insanity Defense and Attempted Reforms 377 defendant killed "purposely, and with prior calculation and design," while murder requires only that the killing be done "purposely" (Ohio, 1998, §§2903.01,2903.02). The criminal law assumes that persons act with "free will" and that they should be held responsible for their own behavior (Perlin, 1994). The insanity defense doctrine, however, excepts from criminal responsibility and culpability a narrow class of persons who have some form of severe mental illness or disability which impairs either their cognitive abilities (e.g., the ability accurately to perceive reality and to make rational and reasonable inferences based upon them) or their volitional abilities (e.g., the ability to control their own behavior) in such a way and to such an extent that their will is compromised. Most states use one of two insanity defense standards: the M'Naghten or the American Law Institute Model penal code (ALI) definitions.4 The ALI standard provides that "a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the reqirements of the law" (American Law Institute [ALI], 1962, §4.01). The M'Naghten standard requires proof that at the time of the offense, as a result of a mental disease or defect, the defendant was unable to know the nature or quality of his act or was unable to know that the act was wrong. [See, e.g., Ohio, 1998, §§2901.01(A)(14), 2945.391]. The M'Naghten test is generally considered to be the more narrow and conservative one because it includes only a cognitive component (knowing that one's actions are wrong), whereas the ALI test adds a volitional component (see Wettstein, Mulvey, & Rogers, 1991). Under the insanity defense, persons meeting this narrow definitional exception are not held criminally responsible for behavior that meets these conditions. Because they are not criminally culpable, they are not "guilty" of a crime in the eyes of the law, even if they actually committed the act in question. Many who misunderstand the essence of the insanity defense ask how someone can be called "not guilty" when it is clear that they did the act, since the term "guilty" is generally thought to apply when a person has engaged in some proscribed conduct.5 However, in assigning "guilt," the law is not only concerned with an individual's actions (the actus reus element), but also with an individual's state of mind (mens red) at the time he or she commits an act. For example, the law generally prohibits the inten- tional killing of another person. However, if an individual kills someone because he/she reasonably believes that his/her life is in imminent danger, that individual might not be held criminally responsible for the other person's death. In legal terms, then, that person might be found "not guilty" even though he/she intentionally killed another person. Because those found NGRI are "not guilty" in the legal sense, they are not 4Not all jurisdictions use these definitions; law in the Virgin Islands, in the United States Third Circuit, states that: "All persons are capable of committing crimes or offenses except ... (4) Persons who are mentally ill and who committed the act charged against them in consequence of such mental illness. ... Virgin Islands Code, Title 14, Chapter 1, Section 14. 5In recognition of this issue, Oregon has revised the name of the insanity defense to "guilty except for insanity" (Oregon Revised Statutes 161.295) This idea is one which, arguably, should be adopted in other states as well. 378 Borum and Fulero subject to criminal sanctions for their behavior. However, they are likely to be civilly committed to a psychiatric hospital (see below). This alternative disposition is rooted, in part, in a belief that punishment would not serve as a deterrent, or that one should not be punished for an act that was not performed with criminal intent, and also that treatment is a more appropriate disposition for such persons than imprisonment. Perceptions and Misperceptions of the Insanity Defense The insanity defense is one of the most controversial areas in the criminal law, and is plagued by many myths and public misperceptions. Often, the impetus for insanity defense reform, including calls for the abolition of the insanity defense, arises from concerns that (a) the insanity defense may be overused, (b) it is used almost exclusively in heinous crimes, (c) people who are acquitted as NGRI simply "go free" or are quickly released, and (d) NGRI acquittees, perhaps because of their mental disorder, are particularly dangerous.