The Trouble with the Insanity Defense: DJ Jaffe Oped in Wall St. Journal : Mental Illness Policy Org

Our legal system still does a terrible job of handling the mentally ill.

By D.J. JAFFE
Wall Street Journal
OPINION MARCH 26, 2010

Earlier this month, 24-year-old Mark Becker was found guilty of killing Satan. Of course, it wasn’t really Satan Mr. Becker killed. It was his beloved high school football coach, Ed Thomas. But Mr. Becker, being severely mentally ill and off his medication, didn’t know the difference.

Apparently, that didn’t matter to the Iowa criminal justice system. Prior to issuing their verdict, the jury asked the judge what would happen if they found Mr. Becker “not guilty by reason of insanity” (NGBRI). The judge wouldn’t answer, so the jury took the safe approach: “Guilty as charged.” A psychotic young man obviously in need of mandatory lifetime violence-preventing medications for his mental illness is instead getting mandatory lifetime incarceration.

Not guilty by reason of insanity is an inadequate remedy to violence by individuals with mental illness. It is only attempted in 1% of all murder charges, and it is rarely successful.

Andrea Yates and John Hinckley were two famous exceptions. Andrea Yates, 37, was found NGBRI in Texas, after postpartum psychosis caused her to drown her five children in a bathtub. Twenty six- year-old Colorado resident John Hinckley was found NGBRI in Washington after he shot Ronald Reagan in a schizophrenia-fueled attempt to secure a date with Jodie Foster. As a result of their successful pleas, both were sent to locked psychiatric hospitals and put on medications to help them regain their sanity. They’re getting treatment and the public is being kept safe. At least for now.

But, theoretically, when their sanity is restored, Mr. Hinckley and Ms. Yates can both be released, to go off medications and start drowning kids or shooting presidents again. As a practical matter, few judges are willing to risk that on their watch, so even when sanity is restored—as it allegedly has been in the case of both Mr. Hinckley and Ms. Yates—NGBRI acquitees are routinely kept committed. Ms. Yates has been in a locked hospital eight years and Mr. Hinckley, 29 years. But what kind of society keeps sane individuals involuntarily committed? Russia circa 1955 comes to mind.

To protect against the possibility of NGBRI acquitees going free, some states either eliminated not guilty by reason of insanity or replaced it with “guilty because of mental illness.” Individuals found guilty because of mental illness go to a hospital until their sanity is restored and then to jail to finish out their sentence. This forces individuals who had no culpability for their actions to go to jail at the exact time it’s not needed—when they’ve regained their sanity. For these individuals being mentally ill is the same as being guilty: either way, they go to jail. Sadly, our prisons and jails have become our de facto mental institutions: More than 230,000 people with severe mental illness are currently incarcerated in America.

If the cause of the crime was lack of treatment for mental illness, then the solution is to reform laws so we can sentence these individuals to mandatory long-term mental illness treatment—including medications—so they never become violent again. The sentence to treatment could be as long, or longer, than the maximum sentence that would be imposed had the person been found guilty. If this change were adopted, incarcerating the mentally ill would rarely be needed.

Their treatment could take place in an inpatient setting on a locked ward if that is what is needed to keep society safe. But, if the sentenced patient progresses—and the crime not too serious—their treatment could be continued on an outpatient basis. Over time, it would most likely be both. Under this form of not guilty by reason of insanity, the sentenced patient could be moved from inpatient care to outpatient care when doing well and instantly back to inpatient with no further court hearings needed if they started to deteriorate. In either case, the individual would be closely monitored by a case manager to see that they stay on their violence preventing medications. That’s the solution that keeps the public safe, avoids wasting resources, and eliminates the dilemma of incarcerating those we should be treating.

Methods for monitoring patients to ensure they take their medications exist and have proven successful. New York’s Kendra’s Law, for example, allows courts to order treatment and monitoring of dangerous mentally ill individuals. According to a 2005 New York State Office of Mental Health Study, patients under court-ordered treatment had an 83% reduction in arrest and 87% reduction in incarceration compared to the three years prior to participation. A Columbia University study published earlier this year found that “individuals given mandatory outpatient treatment—who were more violent to begin with—were nevertheless four times less likely than members of the control group to perpetrate serious violence after undergoing treatment.”

Our current system incarcerates people like Iowa’s Mr. Becker who had no culpability for their actions. It keeps sane people involuntarily committed, and gives potentially violent mentally ill individuals the right to go off violence-preventing medications. That’s not justice, it’s mayhem.

Mr. Jaffe is a co-founder of the Treatment Advocacy Center and founder of Mental Illness Policy Org.