Cases like the Colorado theater shooting, the Arizona Congresswoman shooting, the Virginia Tech shooting, and the Columbine shooting inevitably result in my family, friends and acquaintances asking me variants of the same question:
“He must be crazy, right?”
Like my colleague, Dr. Anne Hanson, my practice is to respond, “Well, I haven’t evaluated him, so I really don’t know.”
And, of course, neither can you.
Nevertheless, there is much speculation, even on this site, as to the potential for an insanity defense when the alleged perpetrator of an horrific crime has survived to go to trial.
So I thought I would take an opportunity to discuss the insanity defense, its variation from one jurisdiction to another, and its prevalence—or rather, its rarity.
Dating back to the development of common law, courts have recognized that some individuals commit crimes not out of malice but rather out of mental disturbance. Many mental illnesses can cause the sufferer to be disconnected from reality in such a way that his or her responses to symptoms may result in carrying out actions contrary to law.
There have been numerous legal tests over the years. They range from the “wilde beeste” test of the pre-modern era (requiring that the sufferer be completely devoid of reason) and the “M’Naghten test” of the 1800’s (in which the accused must be found not to have known the nature or quality of her actions or else did not know that the actions were wrong), to the modern American Law Institute two-pronged test (where an accused must be found to lack substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law).
Other scholars have written volumes about the evolutionary changes in our thinking in insanity law. (I will not review that here.)
But, as the saying goes, bad cases make bad law.
In the aftermath of John Hinckley, Jr.’s attempted assassination of President Ronald Reagan in 1981, a wave of insanity defense reform—perhaps a better term would be “regression”— swept the nation. Progressive approaches to dealing with offenders suffering with mental illness disappeared overnight in many places, with some states eliminating the insanity defense altogether.
Most states stopped short of this extreme, but many reverted to much more stringent insanity tests.
Writing in the immediate aftermath of the attempt on Reagan’s life, forensic psychiatrist Paul Appelbaum neatly summarized our national ambivalence about the insanity defense. Unfortunately, as generally happens, dispassionate consideration gave way to hand-wringing angst about perpetrators who “beat the rap,” and the pendulum swing accelerated.
Even in Maryland, where we have retained the relatively progressive American Law Institute rule, the insanity defense is exceedingly rare. While I have seen estimates even on this website that the insanity defense is raised in 1 percent of felony cases, research strongly suggests that even this is a dramatic overestimate.
My colleagues and I studied this question, finding that the insanity defense is raised only in 0.3 percent of cases, and a finding of insanity is made in just 0.01 percent of cases. That represents one out of ten thousand defendants.
So, I do not know whether James Holmes was insane at the time of his alleged actions in the Aurora, Colorado theater. Presumably, his attorneys will retain appropriate experts to evaluate this question and, presumably, there will be hearings on the issue.
I do not plan to follow this case closely. We have plenty of mental health cases in the Maryland criminal justice system. We evaluate them as required by state law, and if they are found insane and sent to our hospitals, we treat them also as required by state law. Fortunately, most cases aren’t as newsworthy as Holmes, which allows us to work quietly in the shadows with the sufferers sent our way.
Erik Roskes, a regular blogger for The Crime Report, is a forensic psychiatrist and serves on the teaching faculty in the Psychiatry Department at the University of Maryland School of Medicine. The opinions expressed are those of the author only, and do not represent those of any of Dr. Roskes’ employers or consultees, including the Maryland Department of Health and Mental Hygiene. He welcomes readers’ comments. Dr. Roskes’ website is http://mysite.verizon.net/eroskes.