According to a 2017 study conducted by the National Association of State Mental Health Program Directors, more than 10,000 mentally ill Americans who haven’t been convicted of a crime — people who have been found not guilty by reason of insanity or who have been arrested but found incompetent to stand trial — are involuntarily confined to psychiatric hospitals, reported The New York Times Magazine.
While seemingly every conceivable data point in America’s prison system is meticulously compiled, not much is known about the confinement of “forensic” patients, people committed to psychiatric hospitals by the criminal-justice system. No federal agency is charged with monitoring them. No national registry or organization tracks how long they have been incarcerated or why.
In 1992, the Supreme Court ruled, in Foucha v. Louisiana, that a forensic patient must be both mentally ill and dangerous in order to be hospitalized against his will. But in practice, “states have ignored Foucha to a pretty substantial degree,” says W. Lawrence Fitch, a consultant to the National Association of State Mental Health Program Directors and former director of forensic services for Maryland’s Mental Hygiene Administration. “People are kept not because their dangerousness is because of mental illness. People stay in too long, and for the wrong reasons.”
The insanity defense has been part of the American judicial system from its founding, carried over from our English forebears. British law has long reflected the moral sense that society has a duty not to punish people who can’t comprehend or control their crimes. But the insanity defense has always sat uneasily with the public, which tends to regard it as a means to escape justice. In the United States, such sentiments reached fever pitch in 1981, when a 25-year-old named John Hinckley Jr., hoping to win Jodie Foster’s heart, tried to assassinate President Reagan and instead shot James Brady, the White House press secretary. Hinckley was found not guilty by reason of insanity (N.G.R.I., as it is frequently abbreviated) and sent to St. Elizabeths Hospital in Washington. The country was outraged. Dan Quayle, then a senator from Indiana, called the verdict “decadent” and said the insanity defense “pampered criminals.” His Senate colleague Strom Thurmond equated it to a free ride.
In fact, despite its reputation as a “get out of jail free” card, the insanity defense has never been an easy way out — or easy to get. After a defendant is charged, the defendant, her lawyer or a judge can request evaluation by a psychiatrist. A defendant may be found incompetent to stand trial and committed for rehabilitation if she isn’t stable enough or intellectually capable of participating in the proceedings. If she is rehabilitated, she may be tried; if she cannot be, she may languish in a psychiatric hospital for years or decades. But mental illness is not exculpatory in itself: A defendant may be found mentally ill and still competent enough to stand trial. At that point, the district attorney may offer an insanity plea — some 90 percent of N.G.R.I. verdicts are plea deals. If the district attorney doesn’t offer a plea, or the defendant doesn’t take it, the case goes to trial. The defendant may still choose insanity as a defense, but then her case will be decided by a jury.
If N.G.R.I. was always difficult to get, it became even harder after Hinckley. With the Insanity Defense Reform Act of 1984, Congress restricted the judicial definition of “insanity” to only the most severe cases. Some states — Idaho, Utah, Kansas and Montana — have eliminated the defense
altogether. In trials in which it is attempted, doctors may disagree, and jurors are often influenced by emotional considerations. Today, only an estimated one-120th of 1 percent of contested felony cases end in a successful N.G.R.I. defense — that is, the prosecutor disputes the insanity defense, the case goes to trial and the jury finds the defendant not guilty by reason of insanity. In addition, the legal standards for “insanity” vary among states; some define it as a defendant’s inability to know the crime was wrong or the inability to act in accordance with the law, but most define it, post-Hinckley, as only the first of these. At the trial of James Holmes, who killed 12 people and injured 70 in a movie theater in Aurora, Colo., one psychiatrist testified that he was mentally ill but that he knew right from wrong and should be considered “sane.” Another testified that he was mentally ill and incapable of reason (and, by extension, guilt). All four who examined him agreed that he had some form of schizophrenia. Jurors rejected his insanity plea.And when an N.G.R.I. defense does succeed, it tends to resemble a conviction more than an acquittal. N.G.R.I. patients can wind up with longer, not shorter, periods of incarceration, as they are pulled into a mental-health system that can be harder to leave than prison. In 1983, the Supreme Court ruled, in Jones v. the United States, that it wasn’t a violation of due process to commit N.G.R.I. defendants automatically and indefinitely, for the safety of the public.
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