The Constitution and the Insanity Defense:
Via SCOTUSblog, I learn that the Supreme Court has granted certiorari in a very interesting criminal law case, Clark v. Arizona, Case No. 05-5966, which considers the constitutionality of a 1993 Arizona state law that limits the scope of the insanity defense. Lyle Denniston summarizes:
  The first issue in the case . . . is whether the Constitution requires states to allow an individual to claim that, because of mental defect, he could not know the nature and quality of the crime he is accused of committing. Arizona eliminated that aspect of the insanity defense, permitting individuals only to claim that a mental defect kept them from knowing right from wrong.
  The appeal involves an Arizona youth who, at age 17, shot and killed a police officer who had stopped him for loudly playing the radio on his car. Eric Michael Clark contends he was mentally ill at the time of the incident. "This Court," his appeal argues, "has never addressed this issue, and never held that a state may, consistent with due process, abolish the insanity defense as it existed at common law."
  The opinion below was decided by the Arizona Court of Appeals, at least according to the Court's docket sheet, but I don't think it was published.

Related Posts (on one page):

  1. Unpublished Opinion in Insanity Defense Case:
  2. The Constitution and the Insanity Defense:
Abdul (mail):
Is he claiming that there is a fundamental right to mental illness, firmly rooted in the traditions and history of the country, without which the the concept of ordered liberty would be inconcievable?

I don't know if it's constitutional, but I like the idea of being able to wear my underpants on the outside of my clothes and telling anyone who complains, "What? You got some problem with my fundamental rights?"
12.5.2005 11:34am
Anderson (mail) (www):
Is it just me, or is there something a little spooky about a decision that's (1) important enough that it can be granted cert by the SCOTUS, but is (2) unpublished?

Now, as to Abdul, is there really no 1789-era law about people too crazy to know what the heck they're doing? The summary says the accused wants to plead the insanity defense "as it existed at common law." Not quite on the same level as Abdul's underwear fetish.
12.5.2005 12:36pm
Mr. Mandias (mail) (www):
"Is it just me, or is there something a little spooky about a decision that's (1) important enough that it can be granted cert by the SCOTUS, but is (2) unpublished?"

Quite possibly it was not an issue of first impression in Arizona.
12.5.2005 12:40pm
A Blogger:

Note that the bit about "the insanity defense at common law" was the petitioner's claim, not necessarily reality.
12.5.2005 12:42pm
Anderson (mail) (www):
Right, A. Blogger, but I imagine that the common law had met the insanity defense before M'Naghten. Off the cuff opinions, worth what you paid for them, etc.

It seems pretty obvious that any statute which draws the line so narrowly that you end up convicting/executing somebody who was [insert epithet here] when he committed the crime, is not going to meet any reasonable standard of justice. Crimes require intent, which right there sets a mental standard of sorts.
12.5.2005 12:52pm

I agree--the Court has a number of Due Process cases involving mens rea, so even in the absence of specific cases on mental health defenses, it could consider such defenses insofar as they negate mens rea.
12.5.2005 12:57pm

What cases do you have in mind?
12.5.2005 1:08pm
Wintermute (www):
Is this distinction about the abrogation of "diminished capacity"?

Like the state couldn't abrogate its own common law, unless such were state-unconstitutional.

Surely we won't see federal common law enter this case?

What was the result below? Hard to make book on why cert was granted without knowing.

Personally, I like guilty but insane better than McNaughten, which I remember as a political case.
12.5.2005 1:54pm
Don Miller (mail):
IANAL, but from a layman's standpoint, what is inherently wrong with guilty but insane.

Our current system of innocent by mental defect seems to confuse justice and mercy. It is merciful because the person gets help, but the people hurt get no justice.

Guilty, but insane would seem to better balance those two things. Guilty, yes the person did the crime, but they were mentally ill, so instead of prison, they will be sentenced to get the treatment they need.

Rarely do seriously mentally ill people get better without a need for life-long treatment, usually by medication. A guilty, but insane verdict would seem to allow the courts to better monitor this life-long course of treatment.

Just a layman's view point
12.5.2005 2:06pm
Nunzio (mail):
Montana v. Egelhoff, 518 US 37 (1996), is the most recent case I can think of to address the issue of due process and the defendant's right to introduce certain kinds of exculpatory evidence.

The Court (5-4, with Justice Ginsburg concurring with Scalia, Rehnquist, Kennedy and Thomas) said that Montana's refusal to consider "voluntary intoxication" evidence didn't offend due process.
12.5.2005 2:07pm

The cases I can actually name off the top of my head are Morissette, Liparota, X-Citement Video, Staples, and Egelhoff.
12.5.2005 2:09pm

And if I am not mistaken, there are something like 5 opinions in Egelhoff, with the plurality treating it as an evidentiary rule case, and RBG treating it as a case about the substantive elements.
12.5.2005 2:12pm
Anyone know of any place to get the Arizona opinion in this case?
12.5.2005 2:19pm
Anderson (mail) (www):
"Guilty but insane" has practical advantages I'm sure, but how can you be guilty of a crime you didn't intend to commit? How are we defining "guilty"?

The AP report (via everyone's favorite "judicial news" resource, How Appealing) gives us some more factual detail:
In a surprise, the court said it would take up the case of Eric Michael Clark, who has been diagnosed with paranoid schizophrenia. He was a 17-year-old high school student when he shot Officer Jeff Moritz during a traffic stop in Flagstaff, Ariz., on June 21, 2000.

There was evidence that Clark believed his town had been taken over by aliens and that he was being held captive and tortured before the killing.
So, under the AZ statute, even if everyone in Arizona agrees that this kid was a paranoid schizophrenic and completely delusional, he can't plead that as an affirmative defense?

Call me a judicial activist, but that ain't right.

(Arguably his right/wrong sense wasn't impaired---surely it's right to oppose alien invaders?)
12.5.2005 3:08pm
Abdul (mail):

as to Abdul, is there really no 1789-era law about people too crazy to know what the heck they're doing? The summary says the accused wants to plead the insanity defense "as it existed at common law." Not quite on the same level as Abdul's underwear fetish.

I don't have to make sense. I got rights, ya know.

12.5.2005 3:12pm
Anderson (mail) (www):
Or look at this tragic case from Mississippi:
Hawthorne began to hear what he believed to be the voice of God or the Devil. He also began to believe that he was in Hell, that the day of judgment was at hand, that the television was sending messages to him from God or the Devil, that he was going back in time, and that the presidential election of 2000 was being held specifically for him. Hawthorne was observed walking around in a trance and praying in the rain. After experiencing these feelings, Hawthorne believed that he had to go home to Virginia to deliver a cross to his daughter, cure his wife's cancer, and be home before the world came to an end.

On the morning of November 15, 2000, Hawthorne, still under the impression that he had to get to Virginia, borrowed his father's truck and drove down South Gloster Street at a high rate of speed. In his state, Hawthorne believed that he was in God's truck, that no matter what direction he drove he would reach Virginia, and that his truck would pass through any obstacles he might encounter. At the intersection of Green Street and Gloster Street, Hawthorne ran the red light and struck the car driven by Jeffrey McGrew, who died at the scene.
Hawthorne v. State, 883 So. 2d 86 (Miss. 2004) (reversing jury finding of guilt as against weight of evidence &remanding for new trial).

You want to tell me that, had Mississippi abolished the insanity defense, this guy's mental condition would be irrelevant to his guilt or innocence?
12.5.2005 3:16pm
Anderson (mail) (www):
Well, Abdul, if you really do want to wear your underwear on the outside, Madonna might pay for your defense.
12.5.2005 3:23pm
Dilan Esper (mail) (www):
I am not a full-blown originalist, so I don't mind simply saying that M'Naghten is so well established that states can get rid of the volitional test for insanity (unable to conform one's conduct to the law), the other two grounds for insanity-- nature and quality of one's act, and inability to differentiate right from wrong-- are constitutionally required.

But if you are a full-blown originalist, I still think this is a pretty easy case. Malum in se crimes (i.e., crimes recognized at common law), traditionally, always had a scienter element attached to them. Only public welfare offenses later defined by the state could be strict liability crimes. And under ANY criminal scienter standard, if you actually don't appreciate the nature and quality of your act, e.g., you are shooting a person and you have no idea that this is what you are doing, you are not guilty. This principle of law dates back long before the Constitution was adopted and long before M'Naghten. (Actually, as a matter of originalism, the State would probably have a better case abolishing the other prong of M'Naghten, inability to differentiate right from wrong. That aspect of the insanity defense is not affected by the scienter element of the offense.)
12.5.2005 3:33pm
An insanity style defense does not negate a scienter requirement. Were it otherwise, the burden of poof for an essential element of murder (at common law this would be malice aforethought) would necessarily be shifted over to the defendant. In other words, the defense would have to prove that the defendant lacked the necessary intent. This obviously cannot be; the prosecution bears the responsibility of proving every element of the crime.

Sanity, not an element of any crime at common law, is presumed of all defendants. The question here is what can be used to rebut that presumption. States that have abolished the insanity defense have provided that nothing may rebut that presumption. Other states courts have considered this question (Idaho v. Searcy being one example), and come to the conclusion that an insanity defense is not constitutionally required. At least in Searcy, the explanation given was that the mens rea requirement for murder allowed the defense to raise a defense as to the mental state of the defendant. Naturally, this is precisely the opposite of what every other state that permits insanity defenses has found.
12.5.2005 4:09pm
DJ (mail):
For what it's worth, when Nevada abolished the insanity defense by statute a few years back, the normally law-and-order state Supreme Court ruled the statute unconstitutional. For what it's worth.
12.5.2005 4:19pm
Clayton E. Cramer (mail) (www):
I blogged about this earlier today. Excerpt:

I don't claim to any particular expertise in this area--just an interest. This article reminds us of why states have limited the insanity defense:

Arizona changed its laws after John Hinckley's acquittal by reason of insanity in the March 1981 shooting of President Reagan and three others outside a Washington hotel.

Arizona assistant attorney general Michael O'Toole said in a filing that "even if the states are required to provide an insanity defense to criminal defendants, this court's prior decisions make clear that no one particular test is required."

In 1994, the court let stand Montana's abolition of insanity as an affirmative defense for criminal defendants. But then three years ago justices refused to review a Nevada Supreme Court decision that defendants have a right to use insanity defenses.

At issue in the Arizona case is the use of evidence in contesting whether a defendant was so mentally ill that he or she did not know the crime was wrong.

The defendant was apparently schizophrenic:

He was a 17-year-old high school student when he shot Officer Jeff Moritz during a traffic stop in Flagstaff, Ariz., on June 21, 2000.

There was evidence that Clark believed his town had been taken over by aliens and that he was being held captive and tortured before the killing.

His lawyer, David Goldberg, told justices that the state insanity law is unconstitutional because it restricts what evidence can be introduced at trial.

"This court has never directly addressed this issue of national importance," Goldberg said.

This is an interesting question. This PBS article about the development of the insanity defense argues that at least as early 1581, English law recognized that "If a madman or a natural fool, or a lunatic in the time of his lunacy do [kill a man], this is no felonious act for they cannot be said to have any understanding...." Even if the Court were to rule that a defendant has a right (presumably a due process right) to raise the question of insanity at trial, the second question would be what standard the courts are required to use. Apparently, the rule in the 18th century was:

what became known as the "wild beast" test: If a defendant was so bereft of sanity that he understood the ramifications of his behavior "no more than in an infant, a brute, or a wild beast," he would not be held responsible for his crimes.

The M'Naughten Rule adopted in 1843 required the defendant to understand right from wrong to be found sane, but American courts later modified this to include uncontrollable impulses and mental illness. If Goldberg is going to argue that there is a due process right to raise insanity as a defense (a position with which I can sympathize), I will be curious to know what test he expects the Court to require the states to allow. Will it be American insanity defense law as it was in 1868, when the Fourteenth Amendment required "nor shall any State deprive any person of life, liberty, or property, without due process of law"? That would make some sense, I suppose.
12.5.2005 4:20pm
LisaMarie (mail):
I was living in Arizona when they changed the law to guilty but insane (I'm not a lawyer, so I really don't understand the constitutional issue being discussed). As I remember, the impetus was a very high profile case where a man broke into his estranged wife's house and found her in bed with her boyfriend. He killed her by slashing her throat and nearly killed the boyfriend. My understanding of the trial from reading the news was that his lawyer successfully mounted an insanity defense that basically claimed he saw her in bed with another guy, which triggered a psychosis in which he did not know right from wrong. This psychosis lasted just long enough for him to commit the crime, after which he was no longer insane or dangerous. The result was that he spent a short time in a mental hospital for what appeared (to laypeople, anyway) to be a brutal murder committed in a jealous rage. Her parents were so outraged they mounted a huge campaign to change the law from not guilty by reason of insanity to guilty but insane, which was successful. I guess they thought it would keep people who committed violent crimes from claiming that they were no longer dangerous afterwards and being freed. Maybe it was more a political than a legal decision, since the case generated a lot of outrage. Don't know if that makes things any clearer, but that's the background as I remember.
12.5.2005 4:28pm
Anderson (mail) (www):
Very interesting, Fullerene. I wonder what's the obstacle to a statute that (1) presumes all persons have the physical capacity to commit a crime, and (2) forbids any rebuttal of that presumption?

So the fact that I'm a paraplegic doesn't mean I couldn't have walked upstairs to shoot my wife, and I'm forbidden to put on any evidence to the contrary.

Would such a statute violate due process of law?
12.5.2005 4:34pm
Murder at common law is a general intent crime. Precisely what this means in practice (ie what intent is required to be demonstrated) has never been clear. What could not be more clear is that insanity under a congitive test like M'Naughten does not negate general intent. As long as no one else was commanding the defendant's body, any actions taken will be considered voluntary. Assuming no other defenses are available (mistake, self-defense, accident, etc.), the general intent requirement will have been met. General intent is a low standard that is quite apart from an insanity defense.

The simple answer as to whether a state could have a conclusive presumption for physical capacity is that it depends. A state definitely could not have a conclusive presumption on any element of a crime. Where physical capacity (or causation let's say) was not an element of the crime, a conclusive presumption would not run afoul of Winship and Patterson. Nonetheless, a murder statute that did not require the state to prove that the defendant caused or was capable of causing the murder would likely be found unconstitutional on a host of other grounds. Due process? I would think so. It would definitely be cruel and unusual.
12.5.2005 4:53pm
Lest anyone be decieved by my post, mistake of fact and self defense do not negate a general intent requirement either.
12.5.2005 4:57pm
Anderson (mail) (www):
Thanks, LisaMarie. I think we all get the feeling that the insanity defense is abused in some cases. The backlash ends up hurting the very people that society should be extending the most consideration towards.
12.5.2005 5:12pm
BruceM (mail) (www):
The really interesting question, one which I was wondering about recently as it's directly relevant to a case I just got, is whether due process permits the state to abolish the defense of diminished capacity to the extent it's used by a defendant to negate mens rea? It appears this is the second question presented here, and a very good argument can be made that the prohibition of the diminished capacity defense (at least to a specific intent crime) blatantly violates due process.

Say you have a mentally retarded person charged with selling alchol to a minor, when the person has such a mental defect that he doesn't know his own age, doesn't know what the drinking age is, doesn't know there is a drinking age, and doesn't know how to calculate a person's age based on their birthdate. If diminished capacity is not a defense (like here in Texas, where we generally don't allow criminal defendants to use defenses other than a plea of guilty) it seems to violate due process as you're basically telling the defendant that he may not legally introduce evidence that proves his innocence (e.g. his inability to have the requisite mens rea). As far as I'm concerned, this is not for the state/the legislature to decide. If they're going to make something a crime based on certain elements being met, then one charged with that crime has a due process right to negate every element any way possible.
12.5.2005 10:03pm
Wintermute (www):
It seems some focus too much on the subjective mental processes of a defendant at the moment of the offense rather than the harm that criminal statutes are meant to prevent and punish. A purely subjective standard is more appropriate for St. Peter at the Pearly Gates than for an earthly court where harm to others matters and the prospect of more harm exists (deterrence at least through isolation of the offender), and the desires of family, friends, and society for justice (revenge) demand respect as well.

We are not looking at accident, mistake, negligent or even reckless homicide, but at a sequence of events so calculated as to evidence some kind of intent, however muddled or compulsive, that can be repeated. Perhaps establishing some kind of official Blakely factor to be decided by a jury to mitigate the length or place of service of the sentence would be less confusing than defining intermediate offenses. Culpability or non, with the possibility of miracle rehabilitation (sometimes followed by further offenses and accompanied by a widespread, if not universal, sense of unfairness to victims and society) is a slowly receding practice.
12.6.2005 12:46am
BruceM (mail) (www):
If the insanity defense is to mean anything, then weighing it against the behavior a criminal statute is supposed to prevent is disingenuous and a red herring. If we don't want to punish insane people then it doesn't matter if they kill someone or forget to pay their taxes.
12.6.2005 8:46am
Anderson (mail) (www):
It seems some focus too much on the subjective mental processes of a defendant at the moment of the offense rather than the harm that criminal statutes are meant to prevent and punish.

Interesting, Wintermute, but note that you're combining theories of criminal law. "Prevent" doesn't work too well on the insane. So that purpose is out.

As for "punish," anthropologists teach us that once upon a time, performing a forbidden action was punished, regardless of intent. Usually, the move to evaluating intent is taken as a mark of civilization and progress--which Arizona, for one, appears to be taking a step back from.
12.6.2005 8:59am
Mikeyes (mail):
The NGI (in any of its forms) is a rarely used and even more rarely successful defense in my experience and the experience of other forensic psychiatrists. In the Clarke case in AZ, there were two expert witnesses who came to opposite conclusions (a common occurance in these trials) and the court had to establish the facts of the case based on all the testimony. This is a typical scenario for a NGI defense.

My experience was a little different, I was chosen as the sole examiner in the 750+ cases that I was allotted (this was a county court but cases ranged from first degree murder to shoplifting) and only found 10 cases that met the required standard, including one first degree murder case. The rest were attempts on the part of the defense attorneys to make a case where there was none.

SCOTUS will deal with a technical aspect of the most common definition of legal insanity (which is a legal term, not a medical term and as such has a different meaning than both the medical and the lay terms describing mental illness) and the outcome of the decision will probably only make sure that there are fewer unwarranted uses of the NGI (or equivalent) defense.

I would like to point out that the case from Mississippi mentioned above has very little in common with the Clarke case in Arizona. In Clarke the defendant drove around the neighborhood inciting the locals to call the police and when he was stopped, he shot the officer. Prior to that act, he told friends that he had intended to kill a policeman sometime in the near future. According to the decision, Clarke chased the policeman and shot him.

In the Mississippi case the defendant was psychotic and had no intention to kill anyone and the death was apparently an accident. The issue of intent is always one that an examiner has to take into account in these cases as the patients are almost always mentally ill by medical standards.
12.6.2005 2:01pm
Wintermute (www):
Four years of social science studies at the H-bomb long ago made the name Piaget bubble up out of memory, so I did a little review. Very young children judge culpability for an action on its consequences, learning later to take intention into account. But even at maturity more severe consequences (especially homicide)produce judgments of greater culpability even for "unintended" actions or "too crazy to intend" actors.

Leaving revenge aside, the peril to society for repetition of such behavior is great enough to warrant incapacitation of the offender, an end the public does not think adequately served by mere commitment. Maybe watching Jeffrey Daumer on TV the other night is still influencing my thinking.
12.6.2005 6:08pm