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  •   Drawing a Clear Line Between Criminals and the Criminally Insane

    By Stephen Lally
    Sunday, November 23 1997; Page C02

    As a forensic psychologist, I am often asked to evaluate men and women accused of committing crimes in order to assess their competency and whether they can be held criminally responsible for their acts. The law sets fairly straightforward standards for criminal responsibility, and usually I have little difficulty in deciding whether an accused individual qualifies for the insanity defense.

    Thus, I'm often struck by the public outcry accompanying a high-profile trial that raises the question of whether the defendant was legally sane when he or she committed the crime. Each time, there is the same focus on the possibility that the perpetrator might be "let off," often accompanied by a hue and cry about a criminal justice system that would permit such a thing to happen.

    In fact, very few defendants actually succeed with the insanity defense. (It is raised in approximately about 1 percent of felony cases and is successful only about one-quarter of the time.) Among those who are found not guilty by reason of insanity, virtually none are "let off" -- in the sense that they remain free. Indeed, some of those found not guilty by reason of insanity spend more time confined in a locked mental hospital than those sane criminals who are convicted of similar acts and imprisoned for them. People are "let off" in the sense that they escape being formally condemned as "responsible" for their acts, but that is small comfort, I suspect, to a defendant in his 10th or 15th year at St. Elizabeths Hospital, where I used to work. That sort of escape brings to the fore issues of moral responsibility and personal responsibility that are very different -- and much vaguer -- matters, than criminal responsibility.

    The subject of the insanity defense is coming up again now -- as it did in the infamous cases of would-be Reagan assassin John Hinckley and mass murderer Jeffrey Dahmer -- because of the pretrial debate over the mental of Unabomber defendant Theodore J. Kaczynski, who has been linked to 16 attacks between 1978 and 1995 which left three dead and 29 injured. Defense psychiatrists have portrayed him as a "paranoid schizophrenic" who is unwilling to admit his psychological problems. If he is indeed found to suffer from schizophrenia -- a disease that gives rise to both disturbed thinking and distorted perceptions -- it is likely that his lawyers will attempt to plead insanity and have him committed to a mental hospital rather than face the death penalty.

    Some commentators, among them David J. Gelernter, the Yale professor of computer science who was one of the Unabomber's victims, see this possibility as a perversion of justice: The nation is "weak," Gelernter was quoted as saying recently in the New York Times, if it "shrinks from imposing the ultimate penalty."

    I am not in a position to judge Kaczynski's sanity. We don't yet know whether he will be permitted to make the defense. But whether he does or not, it is important to keep the issue of the insanity defense in proper perspective.

    During the seven years that I worked at St. Elizabeths, many of the cases I saw were straightforward in terms of criminal responsibility. Take the homeless man I evaluated several years ago. In a delusional rage, he had attacked a stranger in broad daylight. He was within a stone's throw of half a dozen police officers. From what I could tell, he had never seen his victim before, but he was convinced that she had been persecuting him for many years. Even the presence of police officers did not inhibit his actions (although it did prevent the victim from being seriously injured).

    This homeless man is typical of those who are found to be not guilty by reason of insanity. According to the courts, to qualify for the insanity defense, defendants must suffer from a "serious mental disease or defect" that interferes with their understanding of what they did or impairs their controls. The homeless man I evaluated had been suffering from schizophrenia for years. His mental condition clearly interfered with his understanding of the situation (believing that his victim represented a threat to him). Oddly enough, the shorthand often used by experts to assess whether an individual's control is impaired is to ask whether he would commit the act with a policeman at his elbow. The homeless man did just that. He was, quite appropriately, found not guilty by reason of insanity and committed to hospital.

    In this case, as in about 70 percent of insanity adjudications, the decision to commit this man was made by plea bargain, in which both prosecution and the defense agree to the plea and there is no trial.

    But, like Hinckley, the homeless man did not "get off." He is indefinitely confined to a locked psychiatric hospital. He will be released only when a judge is persuaded that he is no longer mentally ill and dangerous. The average length of stay at St. Elizabeths is eight years. Some individuals remain confined for decades, if not for their entire lives.

    In this way, courts have drawn a clear -- if somewhat arbitrary -- line to define criminal responsibility. If you meet the criteria for insanity, like the homeless man, you are viewed as not being criminally responsible: In other words, your thinking was too disordered or your actions too impaired to have formed the intention to commit a criminal act, and so it is unfair to inflict punishment on you. This singular exception justifies treating all other defendants as competent and criminally responsible: They rationally chose to commit a crime and should be punished for their actions.

    There are, of course, many criminals who have some degree of mental illness but are clearly not eligible for the insanity defense. As surveys of prison populations have shown, there are higher rates of mental illness, mental retardation, brain damage and substance abuse among prison inmates than in the general population. Despite these conditions, the law views all these people as equally criminally responsible: Their mental state did not interfere with their understanding of what they did, nor did it impair their controls. A fine example of somebody whom many would consider sick but who was fully criminally responsible was Dahmer, who murdered, dismembered and cannibalized 15 men in Milwaukee. He did not meet the threshold of having a serious mental illness; he hid his victims' bodies, showing that he was aware his behavior was wrong; when a police officer confronted him, he was able to control his actions. Dahmer pleaded not guilty by reason of insanity, but he was found guilty and sentenced to 15 consecutive life sentences.

    While the legal system does provide clear guidelines for assessing criminal responsibility, mental health professionals are often left to wrestle with the vaguer questions of assessing an individual's moral responsibility. I once evaluated a man, accused of brutally murdering a woman, to determine whether he qualified for the insanity defense. My opinion was that he was not criminally responsible. I was convinced by his pattern of behavior that he was seriously ill. At the time of the crime, he was hearing voices that told him to kill the victim -- and were threatening to kill him if he did not comply. His condition was severe and there was a clear link between his illness and his crime.

    He was found not guilty by reason of insanity and indefinitely committed to the hospital until he could show that he was no longer mentally ill and dangerous.

    Much later at the hospital, I saw the same man in therapy, and the focus of our sessions was this issue of responsibility -- whether he was in some way morally responsible for his actions. What would have happened, I asked him, if the voices had told him to kill his brother? That he would never do, he told me. He would have killed himself first. In other words, his attachment to his brother would have controlled his actions. But he felt no such attachment or empathy for the women he had killed. It is only by developing that sense of moral responsibility that he could ever hope to be released. No such requirements are made of inmates before their release from prison.

    Without guessing what Kaczynski's fate will be, I suspect that he is capable of feeling some degree of moral responsibility: He probably would not have sent a letter bomb to his brother. But if he does successfully plead not guilty by reason of insanity, he won't be getting off. Instead, that plea may be the only way he is made to confront his moral responsibility for his crimes.

    Stephen Lally is a clinical psychologist and serves on the faculty of the American School of Professional Psychology in Rosslyn.

    © Copyright 1998 The Washington Post Company

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