How Killing People With Mental Illnesses Has Become Common in Our Twisted Justice System

In 1982, American jurisprudence sustained a crushing setback from which it has yet to recover. The iconic date is June 21 of that year, when a jury in Washington, DC, found John W. Hinckley Jr., the profoundly disturbed young man who shot President Ronald Reagan and three other men, not guilty by virtue of insanity. The verdict set off a firestorm of outrage that crossed the geographical and political divide; one day after the verdict was announced, an ABC News poll heard 83 percent of respondents proclaim that "justice was not done."

Juror Lawrence Coffey told a reporter at the time how he had lain in bed, ruminating on the evidence presented to him, and concluded, "I felt sure Hinckley wasn't in his right mind when he shot those people." Coffey was correct and a great deal of human misery would have been saved if politicians from right to left had listened to voices of clarity such as his. Instead, with Reagan's incision barely healed, politicos across the country lined up to strangle the insanity defense and, in four states (Idaho, Montana, Utah and, later, Kansas) to abolish it altogether. In 1984, the federal government hopped on board with its own draconian insanity defense statute.

Modern insanity defense ("insanity" is a legal term, while "mental illness" is the proper psychiatric expression) statutes date back to the M'Naghten Rule, which found its way into Scottish law in 1843. According to the M'Naghten Rule, a person can be found not guilty by virtue of insanity if he or she was unable to tell the difference between "right and wrong" when the crime was committed.

With advances in psychiatric knowledge in the 20th century, the M'Naghten Rule became increasingly difficult to sustain, because it imputed too much insight, too much self knowledge, on the part of the defendant. The first alternative to be considered was the irresistible impulse defense; stripped of legal jargon, this defense means that defendants are deemed mentally ill because they were helpless to control their acts. The irresistible impulse defense was certainly a welcome improvement over the harsh Scottish burr of M'Naghten, but it was also vulnerable to advances in psychiatric knowledge - this time, because it perceives mentally ill persons virtually as automatons. One hundred and eighty degrees around the compass from M'Naghten, it imputed too little self-knowledge to defendants.

The humane Durham rule is important, not because so many states adopted it, but because of the impact it would eventually have. Durham states that a person cannot be found not guilty if he or she was "mentally ill" at the time of the crime. Unfortunately, the Durham rule, which enjoyed its moment in the sun in the early 1950's, was tragically vulnerable because it did not define "mental illness."

With three competing legal standards for an insanity defense, a consensus ultimately emerged: the American Law Institute (ALI) Model Penal Code test, which draws from M'Naghten, irresistible impulse and Durham, generally with touches from the individual states. ALI-style bills prevailed across the United States, specifically in the District of Columbia, on the day that Reagan and Hinckley had their violent encounter.

States that have not entirely abolished the insanity defense have since replaced it with standards that distinguished death penalty lawyer George Kendall calls "stingy." Today's standards require evidence of very extreme mental illness, and even then, notes Kendall, "The prosecutors have the upper hand;" under prevailing laws, the defense lawyer bears the burden of proof in trying to convince the jury that his or her client was legally insane when the crime was committed. This is clearly a serious onus for indigent defendants who can't afford a parade of high-priced experts.