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11 Mental & Physical Disability L. Rep. 54 (1987)
Insanity Defense Reform in the United States - Post Hinckley

handle is hein.journals/menphydis11 and id is 56 raw text is: 304(a) Insanity Defense Reform in the United States - Post-Hinckley by Lisa Callahan, Connie Mayer and Henry J. Steadman T he insanity defense is among the most hotly debated and controversial issues in mental health law, recent- ly brought into sharp public focus by the acquittal of John Hinckley. Public concern for defendants not beating their rap coupled with an enduring fear of the threat posed by insanity acquittees' led to considerable legislative activity to address these interests. This research catalogues the actual changes in insanity defense statutes in the three years before and three years after the 1982 Hinckley acquittal.2 The work reported here represents the first stage in a five-year study of the impact of insanity defense reform in ten states.3 Some recent works have examined the specific results of one type of reform, a guilty but men- tally ill (GBMI) verdict.' These studies strongly suggest that many of the legislative intents of such insanity defense reforms are not met. Our study will examine the impact of a variety of insanity defense reforms on the composition and volume of both insanity pleas and ac- quittals. We will compare data three years before and three years after significant insanity defense legislation in each of seven states. An additional three states with no reforms will be studied as a basis for comparisons. It is suggested in both scholarly work' and popular literature' that unpopular decisions, such as the Hinckley acquittal, may affect insanity defense laws by eliciting a flurry of legislative change. Although such an effect has been suggested, no attempt to document reforms prior to and after the Hinckley decision has been previously reported. Further, it is entirely unclear if changes that did occur were precipitated by the sequelae (after-effects) of the Hinckley verdict. The changes in the law identified and studied in this research are: abolition; test of insanity; burden and stan- dard of proof; guilty but mentally ill plea or verdict; trial issues; and commitment and release procedures. Abolition states have abolished a specific plea of not guilty by reason of insanity, but still allow the defendant to introduce evidence of mental illness to prove that he did not have a particular state of mind, or mens rea, which is an essential element of the offense charged. The test of insanity is the legal definition of what constitutes mental disorder sufficient to avoid criminal responsibili- ty. Historically, many tests have existed that attempt to define insanity.7 Burden of proof defines who must establish a particular degree of certainty concerning a specific fact. This degree of certainty is the standard of proof. The burden of proof falls on either the state or the defendant to prove some fact by one of three standards: beyond a reasonable doubt, by clear and convincing evidence or by the preponderance of the evidence. Guilty but mentally ill (GBMI) is a procedure which allows the state to find a defendant guilty but acknowledge his or her need for treatment. The finding of GBMI may be established by plea or verdict or may be raised as a factor in sentencing.8 There are two trial issues that affect the way in which an insanity defense is raised. The first refers to the structure and order of the trial, and the second refers to psychiatric assistance. The procedures to commit insanity defense acquittees vary widely. Some states require commitment in accord- ance with civil commitment, while other states commit automatically after an acquittal by reason of insanity. Release procedures are equally variant. Some states re- quire release at the end of a stated period of time unless the state recommits, and others place the burden on the person committed to petition for release. Conditional release, resembling parole, is also an option in some jurisdictions. Study Design To assess the types of insanity defense reform made following John Hinckley's shooting of President Ronald Reagan, we examined all insanity defense reforms in the 51 U.S. jurisdictions from 1978 through 1985. Rather than simply look at the changes that followed Hinckley's actions, it is necessary to examine reforms prior to the shooting to identify any trends that may have produced reforms even without the Hinckley case. Each state's laws were analyzed, and telephone interviews were conducted with either the forensic director or mental health attorney in each state to identify changes that were not clear from the statutes.9 January 1978 through March 1981 is referred to as the pre-Hinckley time period. Reforms that occurred dur- ing this time are clearly not related to the shooting and subsequent acquittal. Analyzing the time period from the shooting to the acquittal, April 1981 through June 1982, is of questionable value as it is unclear if those reforms were in the process prior to Hinckley's actions and ac- quittal. The time from July 1982 through September 1985 is referred to as the post-Hinckley period. We have ap- proximately 3 years of pre-Hinckley reforms and 3 years of post-Hinckley reforms. The reforms are categorized as follows: (I) changes in the test of insanity or in the entering of the plea; (2) ad- dition of the GBMI option; (3) changes in the burden and/or standard of proof; (4) changes in trial procedures; and (5) changes in commitment and release procedures. Clearly each state's reforms are idiosyncratic to its legal system. However, our classification system permits com- 54 MPDLR/VOL. il, NO. I

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