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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

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
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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