If you have issues viewing or accessing this file contact us at NCJRS.gov. ~. w . i q I ,I I I,·j I J. < I It Ii I) !J , -,,, " !. - . .. - ," . -. Q _,- ,_' -~-r n- .. , _ ,-, _ ~ r r~ r ,- _ f: r-:.. _, I - ~ . '-~, ~- ---,,--,-~, , , _ r ~ ',. , -1'; -, , . ~ , _, _. ' r 01 CR- Je.~!­ :d foJ~~-~1 .~ ; J ;/ J THE INSANITY DEFENSE AND ITS ALTERNATIVES A Guide for Po~cymakers l,' ) jj 1 Ingo Keilitz I Junius P. Fulton , I I ! 93913 u.s. Department of Justice National Institute of Justice \ This document has been reproduced exactly as received from the person or organization originating It. Points of view or opinions stated in this document are those of the authors and do not necessarily represent the official position or policIes of the National Institute of 1 Justrce. I Permission to reproduce this copyrighted material in mi­ 1 crofiche only has been granted by . I National center for State Courts I , " (I j ! to the National Criminal JU$tice Referenc9 Service (NCJRS). Further reproduction outside of the NCJRS system requires permis­ , J sion of the copyright owner. INSTITUTE ON MENTAL DISABILITY AND THE LAW \ NATIONAL CENTER FOR STATE COURTS r CONTENTS FOREWORD ......... , ................... :. .. ..... .. ...... ... .... ...... V PREFACE ................................................................... vii Chapter 1 INTRODUCTION. ..... .. .. .. .. .. .. .. .... .. ..... ...... 1 ;'fhe ", Rush to Reform .................................................. 3 A Brief History ........................................ ,................ 5 Chapter 2 A SURVEY OF LEGISLATIVE PROVISIONS AND SEL~CTED COURT RULINGS .................................... 11 © 1984 National Center for State Courts Abolition of the Insanity Defense .................................... 12 Printed in the United States of America NCSCR-085 Standards of Insanity ................................................. 14 Allocation of the Burden of Proof ................... , ................ 17 Library of Congress Cataloging in Publication Data The Permissible Limits of Expert Testimony ...................... 18 Keilitz, Ingo, 1946- . The Verdicts Available to Judges and Juries ........................ 20 The insanity Defense and Its alternatIves. Bibliography: p. The Disposition of Insanity Acquittees ............................. 22 Includes index. 1. Insanity-Jurisprudence-~nited States. \ 1. Fulton, Junius P., 1958- . II. InstItute on Mental Chapter 3 Disability and the Law (National Center for State AN ANALYSIS OF REFORMS AND POLICY OPTIONS ............. 33 Courts) III. Title. Abolition of the Insanity Defense ............................... ! •••• 33 KF9242.K45 1984 345.73'04 84-2046 ISBN 0-89656-073-2 347.3054 A Question of Fairness ............................................. 34 A Question of Restrictiveness ............... , ..................... 36 This monograph was written under ~ contract (N~m­ A Question of Effidency, Effectiveness ber 72-Nij-83) with the National Ins~Itute of J~S!ICe, and Public Satisfaction .......................................... 38 U.S. Department ofjustice. Points of VIew and opimons expressed are those of the authors and do not neces­ An Emerging Consensus ............................................ 39 sarily reflect the policies of the U,.S. Departme!lt of Supplementing the Insanity Defense ................................ 42 \ Justice, theNational Institute ofjustIce, or the NatIonal Modificatio $ of the Insanity Defense .... , .................... , ..... 46 Center for State Courts. Il ... 111 Standards and Burdens ...................... ····················· .47 Mental Health Expert Testimony ....................... ··.······ .51 Disposition ........................................................... 53 Chapter 4 CONCLUSIONS .............................................................. 63 BIBLIOGRAPHY ............................................................ 69 Introduction ............................................................ 69 In General ............................................................ 69 Reform Issues ........................................................ 70 FOREWORD Legislation ............................................................ 72 Books and Monographs ............................................... 73 Articles .................................................................. 74 The "not guilty by reason of insanity" defense has been the subject Law Review Comments and Notes .................................. 77 of intense public debate since the recent acquittal of john Hinckley,jr. Reports .................................................................. 78 Legal literature, the public media, and the nation's legislatures have all Cases Cited ............................................................. 79 been avenues for the expression of dissatisfaction with the current Statutes Cited .......................................................... 80 operation of the insanity defense. The initial emotional response has led to a concerted effort in many INDEX ........................................................................ 81 quarters to· develop an acceptable alternative to the "not guilty by reason of insanity" defense. I am personally involved in one such effort with the Conference of Chief justices. Our Committee on the Insanity Defense Program is undertaking a study of the insanity defense and ultimately hopes to develop for recommendation an alternative to the existing approaches to the insanity defense which will be acceptable to all jurisdictions and capable of uniform application. In view of the proliferation of recent commentary on the subject, the task is rnonumental. Realizing the ~normity of the task, the I chairman of our predecessor committee, Chief judge Theodore R. Newman, jr., Court of Appeals of the District of Columbia, requested the aid of the National Center for State Courts in providing some \ I '. baseline information for determining the directions the Conference of Chief justices' Committee should take. That request inspired this .. Ii monograph. In undertaking to fulfill the request, the National Center for State Courts became aware of the absence of a single source in which were compiled the literature and the various data on the insanity defense, and recognized. the· value such a source would have to :,,-~,~ _.. policymakers across the nation. The proposal for this monograph was ~presented to the Natfcmal Institute of]ustice, which also recognized the \ need for such a monograph and agreed to fun~ its preparation. The . IV ,"'1 I J ,'I . I• Ii ,1 ,1 :1 resources of the National Center for State Courts, its Institute on :1 1 Mental Disability and the Law, the special efforts of the authors of this ! j monograph, Ingo Keilitz and Junius Fulton, as well as the financial I support of the National Institute of Justice, combined to produce The , :I, Insanity Dejense and Its Alternatives: A Guide/or Policymakers. I It is this type of forward-looking and cooperative response by the National Center for State Courts which is the substance of their value 1 to the courts of this nation. Indeed, the Conference of Chief Justices' '. Committee has relied upon the National Center's assistance and 'I \ resources throughout its endeavors. Its ability and foresight to coor­ : if dinate projects like this with others across the nation assures that our :I ~ t PREFACE individual efforts will be consolidated to serve the public and the ,\ judiciary. !1 While this monograph will not solve the dilemma posed to n policymakers by the insanity defense, it does provide them with an 1\ It is difficult to fathom how the criminal defense of insanity, which 1 organized body of material from which investigation, discussion, and ,j is used so infrequently, can engender the profusion of scholarly and ultimately, meaningful action, can develop. i I II popular literature that it has. The relative rarity of the defense, II however, belies its symbolic role in our legal system and its great FRANKD. CELEBREZZE U II command of public attention. Indeed, this is a slim volume on a vast Chief Justice of Ohio subject that deals with matters of law, social science, ethics, and Chairman, Committee on the It morality. Thus, of necessity, we have been selective and have focused Insanity Defense Program \\ on those areas of the insanity defense-the definitions of insanity, Conference of Chief Justices n burdens of proof, verdicts, the disposition of insanity acquittees, and the q abolition of the insanity defense-that appear to form the core of the ,p insanity defense debate today. Recognizing that this guidebook is meant I I to be useful, first and foremost, to policymakers, we have tried to I, i balance concerns of scholarly purity and what we perceive to be ! H practical considerations of policymakers. We hope that we have not i ( 1) compromised either concern. n The preparation of this guidebook was stimulated by the Con­ /1 ference of Chief Justices, particularly its Committee on the Insanity Defense Program. For their support and encouragement, we are rl indebted to the Conference, its Committee, the Conlmittee's present 11 and past chairmen, ChiefJ ustice Frank D. Celebrezze of Ohio and Chief II Judge Theodore R. Newman,Jr., of the District of Columbia. A contract I with the National Institute of Justice made this guidebook possible. We j are grateful to Maureen O'Connor and Cheryl Martorana of the National Institute ofJ ustice who facilitated our work from its beginning rI ( t and