16.2 Criminal Actions and Insanity
After Andrew Goldstein pushed Kendra Webdale in front of the oncoming subway train, other passengers detained him until the police arrived. When taken to the police station, he explained in a signed statement why he pushed her: “I felt a sensation like something was entering me like a ghost or a spirit or something like that…. When I have the sensation that something is entering me, I get the urge to push, shove, or sidekick” (Rohde, 1999b).
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Goldstein then said he “watched in ‘horror’” as the train ran over Webdale, after which he is reported to have turned to the man next to him, “raised his arms in the air and said, ‘I don’t know’” (Rohde, 1999b). When police came, he told them he was a “‘psychotic patient’ who had suffered a ‘psychotic attack’” (Rohde, 1999b) and asked to be taken to the hospital.
Goldstein was arraigned on the charge of second-degree murder and then, perhaps because he seemed to be mentally ill or because of his long psychiatric history, he was taken to a hospital rather than to jail. As we shall see, if someone who allegedly committed a crime was mentally ill during or after the criminal act, jail may not be the appropriate place for that person to be. Moreover, treatment—rather than detention—may be an appropriate goal for such a defendant’s immediate future. In what follows we review the legal and clinical issues that arise after a crime has been committed by someone who is mentally ill.
Criminally responsible The determination that a defendant’s crime was the product of both an action or attempted action (the alleged criminal behavior) and his or her intention to perform that action.
As discussed in Chapter 1, the term insanity is a legal term and is not used in DSM-5. The legal concept of insanity addresses the question of whether a person was, at the time he or she committed a crime, criminally responsible—which involves both action and intention: To be criminally responsible means that a defendant’s crime was the product of both an action or attempted action (the alleged criminal behavior) and his or her intention to perform that action (Greene et al., 2007; Meyer & Weaver, 2006).
After a crime has been committed and a person has been arrested, the legal system specifies two distinct periods when the defendant could have been suffering from a mental illness: (1) At the time he or she (allegedly) committed the act; might the insanity defense be appropriate? (2) During the time of assessment, leading up to the trial; can the person adequately assist in his or her own defense? Is the person competent to stand trial? We next discuss each of these circumstances in turn.
While Committing the Crime: Sane or Insane?
In the United States, the legal definition of insanity corresponds to a “test” that is used to determine whether a person is insane. The particular test used has changed over time.
From the M’Naghten Test to the Durham Test
M’Naghten test (or rule) The legal test in which a person is considered insane if, because of a “defect of reason, from disease of the mind,” he or she did not know what he or she was doing (at the time of committing the act) and did not know that it was wrong.
In England in 1841, a Scottish man named Daniel M’Naghten believed that the British prime minister, Sir Robert Peel, was personally responsible for M’Naghten’s woes. M’Naghten attempted to shoot Peel but missed him and killed Peel’s secretary. During M’Naghten’s trial, witnesses testified that he was insane, and the jury found him not guilty by reason of insanity (NGBI). This verdict did not sit well with many citizens, including Queen Victoria, the reigning monarch at the time. In response, the House of Lords narrowed the insanity defense by limiting the relevance of the defendant’s mental state to the time the alleged crime was committed. In what came to be known as the M’Naghten test (or rule), the question asked at a trial became whether, at the time of committing the act, the defendant knew what he or she was doing and, if so, knew that the act was wrong—and if he or she did not know this, it was because of “a defect of reason, from disease of the mind.” With this narrower test, the judges reversed the verdict and found M’Naghten guilty.
Irresistible impulse test The legal test in which a person is considered insane if he or she knew that his or her criminal behavior was wrong but nonetheless performed it because of an irresistible impulse.
The M’Naghten test of insanity was adopted in the United States and continued to be used until 1886, when the definition of insanity was widened. The new definition, specified by the irresistible impulse test, focused on whether the defendant knew that the criminal behavior was wrong but nonetheless performed it because of an irresistible impulse.
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Durham test The legal test in which a person is considered insane if an irresistible impulse to perform criminal behavior was due to a mental defect or disorder present at the time of the crime.
In 1954, the Supreme Court ruled on a case, Durham v. U.S., and again broadened the test for the insanity defense. The Durham test was designed to determine whether the irresistible impulse was due to mental defect or disorder present at the time of the alleged crime. The Durham ruling shifted the insanity defense so that it hinged on evidence that the behavior did not arise entirely from free will. The Durham ruling moved away from consideration about morality (knowing “right from wrong”) and into the realm of science (having a mental impairment).
However, the Durham ruling had a major drawback: It left unclear what constituted a mental defect or disorder. For instance, it is possible that someone who was drunk while committing a crime might be considered to have a mental defect. And what about someone with antisocial personality disorder (or psychopathy)? Might that disorder allow that person to use the insanity defense? Moreover, how could the court decide whether the criminal behavior was caused by the disorder or defect (Greene et al., 2007; Meyer & Weaver, 2006)? This drawback is so significant that most states use other definitions of insanity; only New Hampshire still uses the Durham test (Wrightsman & Fulero, 2005).
The American Legal Institute Test
To address some of the thorny issues that arose from the Durham test, the American Legal Institute (ALI) proposed two alternative criteria for insanity:
- The person lacks a substantial capacity to appreciate that the behavior was wrong (versus has no capacity); or
- the person has a diminished ability to make his or her behavior conform to the law, that is, an irresistible impulse.
American Legal Institute (ALI) test The legal test in which a defendant is considered insane if he or she either lacks a substantial capacity to appreciate that his or her behavior was wrong or has a diminished ability to make his or her behavior conform to the law.
The American Legal Institute (ALI) test consists of these criteria, which are sometimes referred to as knowledge (cognition) and impulse (volition) criteria. The ALI test broadened the test for insanity because it provided these two possible criteria (Greene et al., 2007; Meyer & Weaver, 2006). The ALI test also specified that if an individual’s only defect or disorder is criminal behavior, the insanity defense cannot be used. This prevented people with antisocial personality disorder (or psychopathy) and people whose only crime is using illegal substances from using these problems as the basis for an insanity defense. The ALI test continues to be used by many states.
Insanity Defense Reform Acts
In federal courts, the insanity test changed again in 1984, as a result of John Hinckley’s 1981 attempted assassination of then-President Ronald Reagan and Hinckley’s subsequent acquittal as not guilty by reason of insanity. Hinckley was a young man with a history of mental illness; he reported that he shot the president in order to impress actress Jodie Foster, about whom he had obsessive delusions.
The jury found Hinckley insane on the basis of the impulse (volition) element of the ALI test. This means that the jury decided that Hinckley knew it was wrong to shoot the president but that he was not able to restrain himself. He was sent to a psychiatric hospital, not prison. The fact that Hinckley would serve no prison time greatly disturbed some lawmakers, who, through the Insanity Defense Reform Acts of 1984 and 1988, proceeded to restrict the test for insanity. The new test for insanity, used only in federal court, is most similar to the M’Naghten test—it asks whether the individual, because of a severe mental defect or disorder, has a diminished capacity to understand right from wrong (cognition). In an effort to make a plea of NGBI more difficult to enter, Congress also put an end to the irresistible impulse element (volition) in federal courts. Defendants with intellectual disability, psychotic disorders, or mood disorders may qualify for the insanity defense under these new rules, depending on the circumstances of the crime and the defendant’s state of mind at the time, but having a disorder in and of itself is not enough for an insanity defense. Case 16.1 describes a woman who entered a plea of insanity in a murder case. TABLE 16.2 provides an overview of the various tests of insanity.
| Test | Legal standard |
|---|---|
| M’Naghten (1843) | “Didn’t know what he or she was doing or didn’t know it was wrong” |
| Irresistible impulse (1886) | “Could not control conduct” |
| Durham (1954) | “Criminal act was caused by mental illness” |
| American Legal Institute (ALI; 1962) | “Lacks substantial capacity to appreciate the wrongfulness of the conduct or to control it” [emphasis added] |
| Present federal law (1984 and 1988) | “Lacks capacity to appreciate the wrongfulness of his or her conduct” |
| Source: Meyer & Weaver, 2006, p. 123, which was adapted in part from Morris, 1986. | |
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CASE 16.1 • FROM THE OUTSIDE: The Insanity Defense
In 2001, Andrea Yates confessed to police that she drowned her five children, ages 6 months to 7 years old, in her bathtub. She reported that she believed Satan was inside her, and she drowned them to try to save them from hell. Yates’s lawyers said that she had been psychotic at the time of the murders and that she did not know that her actions were wrong. (According to Texas state law, the key element of the insanity defense is knowing that the actions were wrong at the time of the crime.) Her lawyers pointed to her history of mental illness: two previous suicide attempts and four psychiatric hospitalizations for schizophrenia and postpartum depression.
During her trial, an expert witness for the prosecution, psychiatrist Dr. Park Dietz, agreed with previous witnesses that Yates had been psychotic at the time of the drownings, but testified that she was still able to know right from wrong and therefore not insane under Texas law. To support his position, Dr. Dietz brought up the television series Law and Order, which he had been told Yates had watched. Dietz, who also served as a consultant to the producers of that television series, testified that shortly before she drowned her children, an episode of Law and Order aired that involved a woman with postpartum depression who drowned her children in a bathtub and was declared insane. Prosecutors used Dietz’s testimony about the television show to indicate that Yates knew her actions were wrong (Greene et al., 2007).
It turns out, however, that no such episode had been aired; this error was discovered after the jury convicted Yates of murder but before they began deliberating about her punishment. Rather than declare a mistrial, the judge simply told the jurors about the error. Yates was given a life sentence in prison. The appeals court ruled that a mistrial had occurred, and Yates was retried. She was ultimately found not guilty by reason of insanity and placed in a state mental hospital, where she will remain until she is no longer considered a danger to others or herself.
(Ewing & McCann, 2006).
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The Insanity Defense: Current Issues
Use of the insanity defense is rare (only 1% of cases, according to one study), and successful use of the defense is exceptionally rare—only one quarter of the time it is used, or 0.25% of cases (Steadman et al., 1993). Despite its rarity, the federal requirements for the insanity defense have narrowed over time. However, the courts have yet to resolve two issues about how this defense can be applied:
- whether the person knew the act was wrong (a moral question) versus illegal (a legal question); and
- whether the person knew in the abstract that the act was wrong versus knew that the specific behavior was wrong in a particular circumstance. For instance, someone can know that killing people is wrong but, because of a mental illness, believe that killing a particular person for a specific reason is justified: “He was the devil, tempting me, so I had to kill him.”
Let’s examine how these issues about the insanity defense apply to Andrew Goldstein, who pleaded not guilty by reason of insanity. At the trial, an eyewitness to the murder, Ms. Lorenzino, who was standing nearby on the platform, testified that she:
entered the subway station…just behind Mr. Goldstein and immediately noticed that he was acting strangely. “I saw a man walking in front of me walking oddly,” Ms. Lorenzino said. She said Mr. Goldstein would take a few “baby steps” on his “tip toes” and then stumble. Mr. Goldstein then started walking normally, then paced furiously back and forth on the southern end of the platform. He mumbled to himself and eyed Ms. Lorenzino and Ms. Webdale, who was reading a magazine about six feet away from Ms. Lorenzino, each time he passed them….
As the wait for a train dragged on, Mr. Goldstein walked up to Ms. Lorenzino and stood beside her, she said. “I felt very uncomfortable that he was standing next to me…. I said, ‘What are you looking at?’ Then he backed off as if he was frustrated.” Mr. Goldstein paced for a few more minutes, Ms. Lorenzino said, looked down the track as if checking for a train and then walked down the platform to Ms. Webdale. “Do you have the time?” he asked her. Ms. Webdale glanced at her watch and answered, “a little after five,” Ms. Lorenzino said. Mr. Goldstein then positioned himself against the wall behind Ms. Webdale, who returned to her magazine, Ms. Lorenzino said.
When the train sped into the station, she said, Mr. Goldstein “darted” off the wall and violently pushed Ms. Webdale. Ms. Lorenzino said she was struck by how well-planned the push seemed. It gave Ms. Webdale no time to escape. “It was perfect,” she said, referring to the timing. Ms. Webdale’s body never hit the rails, she said, “she just flew right under the train.”
Police Officer Raymond McLoughlin, who also testified…said he arrived at the station to find people shouting, “He’s right here! He’s right here!” He found Mr. Goldstein, who made no effort to escape, sitting on the platform with his legs crossed, surrounded by 20 enraged people who were berating him, he said.
(Rohde, 1999c)
After the murder, during Goldstein’s confession, the prosecutor tried to understand whether Goldstein understood what he was doing—that is, whether his
mental illness caused him to lack a “substantial capacity” to know or appreciate “the nature and consequence” of the attack or know that it was wrong. On the videotape, [the prosecutor] pointedly asks Mr. Goldstein if he thinks it was wrong to push Ms. Webdale. Mr. Goldstein nods and then appears confused. The prosecutor asks him if he understands. Mr. Goldstein says no, and then [the prosecutor] asks him again if he thinks the attack was wrong. “I wasn’t thinking about anything when I pushed her,” Mr. Goldstein said. “It’s like an attack. You don’t really think…. It’s like whoosh, whoosh,” he added, referring to what he repeatedly described during the confession as the sensation of a “spirit” or “ghost” entering his body that gave him an overwhelming desire to push, kick or shove. Mr. Goldstein says that he pushed Ms. Webdale only “slightly,” but then seems confused again. He blurts out that “I didn’t push her thinking she would end up on tracks,” and that he did not know in what direction he was pushing Ms. Webdale.
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Mr. Goldstein then says, “I wouldn’t push anyone onto the tracks.”
“Because you know it’s wrong?” [the prosecutor] asks.
“Yes,” Mr. Goldstein replies.
(Rohde, 1999a)
The prosecutor continues to try to clarify whether Goldstein understood that what he had done to Webdale was wrong:
“But you knew,” says the interrogator, “that if you pushed her off the platform, she might get…”
“Killed, yeah,” Mr. Goldstein says.
“And you also knew that if you did that, it would be the wrong thing to do?”
“Yeah, definitely,” Mr. Goldstein says. “I would never do something like that.”
“Well, you did.”
“I know, but the thing is I would never do it on purpose.”
Assessing Insanity for the Insanity Defense
How does a jury go about determining whether a defendant was insane at the time a crime was committed? The members of a jury rely on testimony about the defendant’s mental state during the time leading up to the crime. Such testimony may come from friends and family members or from witnesses. In Goldstein’s case, witnesses testified that he was acting strangely before pushing Ms. Webdale in front of the train. Jurors may hear about a defendant’s history of mental illness prior to the crime (as occurred for both Goldstein and Hinckley). Expert witnesses who are mental health clinicians may give testimony or submit reports.
How do mental health clinicians determine whether a defendant was insane at the time a crime was committed? They may interview the defendant in jail and administer and interpret psychological tests (see Chapter 3). However, such after-the-fact assessments of the defendant’s mental state should take into account events that occurred after the crime and before the clinician’s evaluation. Specifically, the defendant’s mental state may be affected by his or her experiences in jail, medications he or she may be taking, decision to plead NGBI, reactions to the crime, coaching from the defendant’s lawyer or other inmates, and even responses to various assessment methods (Meyer & Weaver, 2006).
Past psychiatric history doesn’t necessarily indicate a person’s mental state at the time he or she committed a crime, but a history of mental illness can provide a context for evaluating the person at the time when the crime was committed. In Goldstein’s case, symptoms of schizophrenia arose when he was 16 years old, and he was committed to a state psychiatric facility when he was in college. Following this stay, he had a lengthy history of mostly brief hospital stays, each one lasting only until he was “stabilized” (not actively psychotic); he was then released to outpatient treatment. However, because of a lack of state funds for mental health care, Goldstein’s outpatient treatment usually consisted of almost no treatment. For most of the time he was ill, he did not have close supervision or monitoring and did not reliably take his medication (Kleinfield & Roane, 1999). He would eventually deteriorate to the point where he needed to be hospitalized, was stabilized and released again, and then the cycle would be repeated—a process often referred to as a “revolving door.”
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States’ Rights: Doing Away with the Insanity Defense
Some states have abolished the insanity defense, replacing it with another type of defense that recognizes that a defendant did not have “free will” while committing a crime (Meyer & Weaver, 2006). Two alternative options are:
- Diminished capacity, whereby a person, due to mental illness or defect, was less able to understand that the criminal behavior was wrong or to formulate a specific intention. With this defense, the person is still considered guilty but receives a lesser sentence, is convicted of a lesser crime, or receives a modified form of punishment. This defense contains variations on the two elements of the ALI test of insanity.
- Guilty but mentally ill, whereby a convicted defendant is found to be “responsible” for the crime but often sent to a psychiatric facility and, if his or her mental state improves over time, may also serve time in prison; alternatively, the defendant may be sent to a prison immediately, where he or she may or may not receive psychiatric care. Note that with “guilty but mentally ill,” the person isn’t acquitted (that is, found not guilty of a crime), and there is no guarantee that mental health services will be provided (Meyer & Weaver, 2006; Ogundipe & Shankar, 2013). In fact, in many states, prisoners who have been found guilty but mentally ill receive no more psychological treatment than do other prisoners (Wrightsman & Fulero, 2005).
CURRENT CONTROVERSY
Criminal Behavior: Does Abnormal Neural Functioning Make It More Excusable?
With advances in medical technology and neuroimaging, a question of particular relevance to the justice system, clinical psychology, and neuroscience has emerged (Yang et al., 2008): Should individuals with abnormal neural functioning be held less responsible for their criminal behavior than people with normally functioning brains?
On one hand, neuropsychological evidence suggests that disruptions in brain structure and function may be associated with criminal behavior. For example, individuals who commit impulsive murders generally have reduced activity in the prefrontal cortex (Raine et al., 1998). The prefrontal cortex, along with other areas of the frontal lobe, is important for impulse control and plays a key role in regulating social behavior (Beer et al., 2006). Disruptions in the functions of these brain areas have been observed in individuals with antisocial personality disorder (see Chapter 13; Volkow et al., 1995; Raine et al., 1997). In one case, for example, a man’s tumor in part of the frontal lobe is believed to have led to his criminal sexual behavior, which included reduced sexual impulse control and pedophilia. He claimed that before his tumor he’d never engaged in such behavior; when the tumor was removed, the aberrant sexual behavior stopped, but it resurfaced when the tumor regrew less than a year later (Burns & Swerdlow, 2003).
On the other hand, caution is needed when considering the relationship between brain structure and behavior. First, even seemingly simple behaviors are remarkably complex from a neurological and cognitive standpoint; as such, it is often difficult and even irresponsible to claim that abnormality of any single brain structure is the “cause” of abnormal behavior. Also, although the findings from some studies of individuals with antisocial personality disorder suggest an association between structure and function, association (that is, correlation) is not causation. This point is particularly striking when we consider that although we usually think that brain structure and function drive behavior, our behavior can impact brain structure and function as well. For example, drug abuse can produce harmful changes in neurochemistry and brain structure (Rosenbloom et al., 2003), just as cognitive and behavioral interventions can enhance neural function and lead to positive changes in brain structure (Olesen et al., 2003).
CRITICAL THINKING If it turns out that criminal behavior can be caused by disrupted neural functioning, how do you think society should deal with criminals who have abnormal brains? Should they be considered not guilty by reason of insanity?
(Meghana Karnik-Henry, Green Mountain College)
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With the Insanity Defense, Do People Really “Get Away with Murder”?
After the Hinckley trial, some people perceived the insanity defense as a way to “get away with murder.” But as noted earlier, this perception isn’t very accurate. Consider a landmark study of 9,000 felony cases across eight states from 1976 to 1987 (Steadman et al., 1993). Among those cases, only one quarter of 1% of defendants were acquitted (that is, found not guilty of the crime). And of this 0.25%, only 7%—2 cases—were acquitted by a jury rather than a judge. This indicates that the defense of not guilty by reason of insanity was not very successful. Researchers have also compared the average time spent in jail by defendants who were found guilty (5 years) versus the average time spent in a mental hospital by those who were found NGBI (4.7 years) and concluded that when the insanity defense is used successfully, people do not “get away with murder” (Meyer & Weaver, 2006).
After Committing the Crime: Competent to Stand Trial?
Whereas the insanity defense refers to a defendant’s mental state at the time the crime was committed, his or her competency to stand trial is based on an evaluation of mental state during the time leading up to the trial. That is, does a mental defect or disorder prevent the defendant from participating in his or her own defense? Competency to stand trial usually entails being able to:
- understand the proceedings that will take place,
- understand the facts in the case and the legal options available,
- consult with his or her “lawyer with a reasonable degree of rational understanding” (Dusky v. United States, 1960), and
- assist the lawyer in building the defense.
With this all-or-nothing standard, Goldstein was found competent to stand trial.
The same all-or-nothing standard is used to determine whether a defendant is competent to plead guilty as well as competent to waive the right to an attorney (Godinez v. Moran, 1993; Perlin, 2000a). If a person is found not competent to stand trial, he or she would also be considered to be not competent to plead guilty or to waive the right to an attorney. Someone who is found not competent is referred for mental health treatment (Dusky v. United States, 1960). Case 16.2 examines the issue of competency to stand trial and waive counsel.
CASE 16.2 • FROM THE OUTSIDE: Competent to Stand Trial and Waive Counsel
On December 7, 1993, Colin Ferguson intentionally killed 6 people and injured 19 others on a New York commuter train. After his arrest, Ferguson was diagnosed with paranoid personality disorder. Because he was assessed as rational and not delusional, he was deemed competent to stand trial; he fired his attorney when the attorney stated that he would propose an insanity defense. Ferguson then chose to represent himself but did not use the insanity defense. The legal system allowed a mentally ill man to be his own legal counsel, although he did not defend himself adequately. Those following the trial witnessed an intelligent but clearly mentally ill man state that he would call as a witness an exorcist who would testify that a microchip—supposedly planted by the governor of New York—had been lasered out of Ferguson’s head by a remote control device (McQuiston, 1995; Perlin, 2000a). That witness was never called to the stand.
Ferguson was convicted on 6 counts of murder and 19 counts of attempted murder.
Competency to stand trial The determination that a defendant’s mental state during the time leading up to the trial enables him or her to participate in his or her own defense.
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When defendants are found not competent to stand trial, they sometimes are medicated to reduce the symptoms of their mental illness and make them able to stand trial. Occasionally, defendants do not want to take the medication but are given it against their will, perhaps by injection. However, the Supreme Court ruled that mentally ill patients accused of nonviolent crimes could not be forced to take medication in order to become competent to stand trial (Sell v. United States, 2003). If it appears unlikely that a person will become competent to stand trial, he or she may be civilly committed to a psychiatric facility if deemed a danger to self or others.
Thinking Like A Clinician
Jon has been arrested for disturbing the peace and destroying private property; at 2 A.M. last night, he was yelling and kicking over trash cans on Main Street, and he broke several store windows. His rant went on for 25 minutes, until the police arrived. Jon initially resisted arrest and then cooperated. It seemed to the police that Jon was behaving as if he were having a manic episode, and, in fact, he had a history of bipolar disorder. How might mental health clinicians and the legal system go about determining whether Jon was “insane” at the time of the crime? What information would you want to know in order to determine whether he was insane? What if, rather than a history of bipolar disorder, Jon had a history of alcohol use disorder and was drunk the night of the crime. Would that change your opinions? Why or why not?