AT 7:45 P.M. on Monday, June 21, 1982, the Hinckley jurors filed into the courtroom to announce their verdict. As they took their seats they appeared tense. Most stared straight ahead, but a few glanced toward John Hinckley, if only for a second.
The verdict was unsealed and read. Beginning with the first count of the indictment -- attempting to kill President Reagan -- and ending with the 13th -- using of a firearm in committing a federal offense -- the unanimous finding on each count was "not guilty by reason of insanity." Near the end of the reading, the muffled whispers and gasps drifting from the press and spectator section of the courtroom increased in volume.
As I read the verdict my own reaction was one of surprise. At the same time, I recognized that after hearing weeks of sharply conflicting testimony, the jurors were presented with a reasonable doubt as to the defendant's sanity. To the extent that their verdict demonstrated that they did not disregard the court's instructions on the law, we should take comfort in the strength, independence and integrity of our jury system.
The courtroom response that evening was mild compared to the public outcry that followed. Much of this reaction had a common theme: How was it possible that our criminal justice system was unable to punish "immediately" and "effectively" a defendant who had been seen by millions of television viewers in an attempt to assassinate the president of the United States?
There were immediate demands to outlaw the insanity defense. Attorney General William French Smith declared: "There must be an end to the doctrine that allows so many persons to commit crimes of violence, to use confusing procedures to their own advantage, and then have the door open to them to return to the society which they have victimized." The Senate and House judiciary committees scheduled hearings to consider changes in the insanity laws. And within 36 hours of the jury verdict, a Senate subcommittee summoned five members of the jury and queried them on the problems and issues they had faced during the trial and in their deliberations.
Meanwhile, I received a flood of communications. Many contained news clippings, syndicated columns or cartoons, all laced with spicy "personal" comments on expert psychiatric testimony and the legal and medical implications of the insanity defense. With few exceptions, these communications were hostile and vitriolic.
Many who wrote also showed a lack of understanding of what had really happened at the trial. There was outrage that the jury had "freed" Hinckley, and I was castigated for not having "rejected" or "changed" the verdict. Because of my "vacilliation" and "incorrect explanations of the law" to the jury, I was declared guilty of "criminal malfeasance" and a candidate for "impeachment."
An appreciable amount of the correspondence was regrettably gross, insulting and blatantly racial. The "black judge" -- the "all black jury" (all but one), and the location of the trial in a "black city" were all tied to "blacks' known dislike and hatred of Reagan." It was also sad to note the number who wrote that the verdict had been "maneuvered" by Hinckley's rich parents who "had bought and paid for" the judge and jury.
In the year since the Hinckley verdict, those initial reactions have subsided. Happily, the country has not made drastic changes in the insanity defense. In my opinion, there is no justification for doing so.
The fact is that, historically, reliance on the insanity defense has been only marginally successful. Insanity pleas and insanity acquittals are exceedingly infrequent; only a few "beat the rap."
This conclusion is supported by testimony from recent hearings before Senate and House subcommittees considering changes in the insanity laws. Of particular interest is a letter from Robert McConnell of the Justice Department, who reported to Sen. Strom Thurmond (R-S.C.) that in 1981, only four defendants could be identified who had been acquitted of charges in the federal courts because of a successful insanity defense.
In December 1982, the American Psychiatric Association noted: "Successful invocation of the defense is rare (probably involving a fraction of 1 percent of all felony cases). While philosophically important for the criminal law, the insanity defense is empirically unimportant." Reports of the American Bar Association reach the same conclusion.
The insanity defense is deeply imbedded in the culture and the legal tradition of our society. When a defendant, because of his mental state and condition, engages in conduct which violates the criminal law, a conflict is presented between two well-recognized and legitimate goals of society. One is to hold the offender accountable, to punish for wrongful conduct and to protect the public from a dangerous person. The other is the belief that it is intolerably cruel and inappropriate to incarcerate a person who is personally irresponsible because of a mental disability which deprives him of the minimal capacity for rational choice.
For those individuals who cannot be held accountable because they suffer from a mental disability or disease, social control and rehabiliation are better served by confinement in a secure hospital setting. Rehabilitation, an end to be served in sentencing, is inappropriate, because such an offender is not morally culpable.
Similarly, the general deterrence theory underlying punishment is inappropriate because such an offender is not afraid of the sanctions imposed upon violators of the criminal code. Nonetheless, the insanity defense is consistent with the specific deterrence theory. If the defense is successful, the defendant is usually incarcerated for a fixed period or until such time as he no longer presents a danger to himself or to others.
The Hinckley verdict provoked a variety of criticisms. Some said it showed that the insanity defense undermines the law's expectation of accountability because it can be invoked with success by defendants who commit violent crimes. Others criticized the wide range of admissible testimony presented during the trial, particularly by the defendant's expert psychiatric witnesses, who were able to introduce their personal moral judgment regarding the defendant's accountability under the guise of offering expert testimony about his mental disorder.
Some criminal trials where the insanity defense is invoked do become a contest between prosecution and defense experts who dispute the relevance and significance of various definitions and concepts, or of secondary and esoteric meanings of highly technical terms. In short, psychodramas are sometimes acted out in court; the major concern involving the defendant's moral culpability may be lost after the first act.
The public reaction to the Hinckley case also revealed a widespread fear that the defendant who successfully invokes the insanity defense will either walk away from the courthouse a free man or, after a short confinement, be released all too soon, to move freely among society, without adequate safeguards against a repetition of his conduct.
Federal courts have never been governed by an act of Congress dealing with the insanity defense. Formulation of the defense has been based upon case law -- opinions authored largely by judges in the U.S. circuit courts of appeal. Nor has the Supreme Court played a significant role in this formulation.
Precedents in this field begin in British law, most famously with Queen v. M'Naghten(1843). That trial was the first to recognize the developing medical science of psychiatry.
M'Naghten and Hinckley offer several striking parallels. Daniel M'Naghten attempted to assassinate Robert Peel, the British prime minister. Peel's secretary, Edward Drummond, was mistakenly shot in the attempt and died a few days later. The Times reported that the crime was committed "in the open street, and in the broad face of day." Trial records reported: "The excitement of the (case) has not been surpassed by any of the extraordinary events of a similar character which have taken place during the last quarter of a century."
At the trial M'Naghten's counsel presented nine medical witnesses who testified that the defendant was insane and suffering from delusions of persecution. No medical testimony was presented by the prosecution. The jury verdict provoked alarm and criticism. The Times editorialized: "Ye people of England exult and be glad for ye're now at the will of the merciless mad . . . for crime is not crime -- when the mind is unsettled." M'Naghten was confined for the rest of his life, nearly 22 years, in mental institutions.
Subsequently, the House of Lords adopted what became known as the M'Naghten Rule. It stated that "(To) establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the accused was laboring under such a defect of reason, from disease of mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong."
The rule became a generally accepted standard, although its focus on a defendant's lack of cognitive understanding of what he was doing as the basis for legal insanity was a source of repeated criticism. Today, many states still rely on M'Naghten.
However, some jurisdictions have adopted other legal formulations. Since 1972, the District of Columbia has used a formulation of the American Law Institute (ALI) Model Penal Code: "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of the law."
I relied upon the ALI fomulation in the Hinckley case. The ALI test, with some modification, has been adopted in all federal courts and in nearly half of the states through legislation or judicial decisions.
Since June 1982 more than 40 bills have been introduced in Congress relating to the insanity defense in federal courts. The most noteworthy would abolish the insanity defense entirely, revert to the M'Naghten Rule or limit and redefine insanity. Others would provide alternative jury verdicts; shift the burden on the insanity issue; restrict the nature and scope of psychiatric testimony; and establish federal commitment procedures for a defendant who successfully invokes the defense.
Proposals to restrict and cripple the effect of the insanity defense would repudiate entrenched principles of civil liberties and allow the criminalization of conduct that had long been beyond the reach of the law. Not surprisingly, therefore, when the initial wave of emotion surrounding the Hinckley verdict subsided, these proposals failed to attract broad support.
In the usual criminal trial, a jury is instructed on two possible verdicts -- guilty as charged or not guilty. When an insanity defense is raised a special verdict instruction is required. In Hinckley this instruction was "not guilty by reason of insanity." Several jurors testified to the Senate subcommittee that this special instruction greatly narrowed their options.
Critics of the insanity defense have advanced (among other suggestions) three possible variations on the traditional instructions to the jury: 1) not guilty only by reason of insanity, 2) guilty but insane, and 3) guilty but mentally ill. Our local D.C. statute provides for the first proposed verdict. The second -- guilty but insane -- presents an anomaly. It is a contradiction in terms, presenting the possibility of illogical and inconsistent results and, more importantly, posing serious due process problems.
Eight states have recently enacted statutes providing for the "guilty but mentally ill" verdict. The courts later. The Time sentences the defendant as in the case of a guilty verdict, but instead of incarceration he undergoes a psychiatric evaluation. If it is determined that a mental illness exists, the defendant is then transferred for treatment to an appropriate mental health facility. During the term of the imposed sentence, if the defendant recovers his mental health, he is transferred to a correctional facility and then serves the remainder of the previously imposed sentence there.
This verdict is far from an ideal solution. Since it calls upon a juror to distinguish between mental illness and legal insanity, it can cause confusion among jurors who might then arrive at their decision as a compromise rather than through careful and painstaking reasoning.
The American Bar Association's standing committee on these issues criticized this verdict, noting among its several objections that the appropriate form of correctional treatment should be decided at sentencing and by correction authorities, not by a jury verdict. The American Psychiatric Association, in expressing its reservations, commented convincingly that the approach "makes sense only if meaningful mental health treatment (is given) following such a verdict. In times of financial stress, the likelihood that meaningful treatment for (such defendants) will be mandated and paid for by state legislatures is, however, slight. This has been the outcome in Michigan . . . where felons, . . . even though they have been found guilty but mentally ill, have received no more treatment than they would have prior to the new law."
In federal courts the applicable legal standard requires that when a defendant raises the issue of insanity, the prosecution bears the burden of proving beyond a reasonable doubt that the defendant was sane. However, a significant number of state courts and the local D.C. courts place the burden on the defendant throughout the trial, requiring him to prove his insanity either by a preponderance of the evidence or by clear and convincing evidence. The centerpiece of the Hinckley indictment was the attempt to assassinate the president, a federal crime; thus the federal standard had to be used.
Nearly 90 years ago, in United States v. Davis, the Supreme Court held that when instanity is presented as an affirmative defense, the prosecution must prove the defendant's sanity beyond a reasonable doubt.Davis was not decided on constitutional grounds but on the court's administrative power. It is the prevailing law today. A defendant should not be judged guilty of a crime unless the prosecution proves beyond a reasonable doubt that he had the requisite mental state as to each element of the crime. In a federal trial proceeding when an insanity defense is raised, the prosecution is neither prejudiced nor disadvantaged by that burden. In my opinion, shifting that burden would not be desirable when the defense is raised.
Expert psychiatric testimony has always played a central role in the presentation of an insanity defense. During the year since Hinckley there have been repeated calls for changes in this area. Several bills in Congress propose amending the federal rules of evidence to preclude testimony on the diagnosis of a defendant's mental condition. Other bills would preclude psychiatrists from giving their own conclusions on whether a defendant understood the wrongfulness of his conduct or had the necessary "state of mind" to be tried in the normal fashion.
Persuasive arguments may be advanced for a limit to the expert's testimony on the ultimate legal issues posed concerning the insanity defense. But it would be a mistake to try to limit or preclude psychiatrists' testimony on their diagnoses of defendants' mental conditions. There is nothing magical about the diagnosis of an expert psychiatrist, but cross-examination of the witness is a reliable procedure for testing the premises upon which the diagnosis is built and for establishing alternative findings and other diagnoses supported by the same set of f. The Timeacts. Psychiatric terminology and jargon may indeed be confusing to the average juror and, on occasion, even to the judge. But the expert can be required to explain the meaning of psychiatric terms and the behavior of facts upon which his diagnosis is based.
More importantly, an effort to restrict or eliminate opinion on the diagnosis of a defendant's mental condition may very well violate a defendant's right to a fair trial.
One area in which reform is clearly warranted involves commitment procedures for federal defendants who are found not guilty by reason of insanity.
Hinckley is being dealt with under the terms of a D.C. Code provision that entitles him to a "release hearing" 50 days after his commitment to St. Elizabeth's hospital and periodically thereafter. The burden of proof is on the defendant to demonstrate that he no longer suffers from the mental disability that led to his commitment.
But there is no statute governing the commitment and subsequent handling of defendants throughout the federal system. Since 1970 several measures have been introduced to remedy the situation, but none has passed. It now appears likely that some legislation will be adopted to close this gap.
We should not allow the Hinckley verdict to create a mood for changes that will offend the basic traditions and concepts of our criminal justice system. It is unlikely that abolition or radical modification of the insanity defense would cause any reduction of crime and violence in our society. The call for changes in the defense -- because of the belief that it is abused by the defendants who rely upon it and because it is a rich man's defense -- is simply not supported by the facts.