Wednesday, July 25, 2012

Insanity Defense and James Holmes

Following the Aurora shooting this past week, I have noticed a good many people talking about the insanity defense. Many are worried Holmes will use it and basically be given a “Get out of Jail Free” card. Others are saying “this act was premeditated, so obviously McCrazy won’t be able to use the insanity plea now! HAHA!”

With all these jewels of intelligence spewing forth their intricate knowledge of the law around, I thought I might add my two cents on the matter. More specifically, I’ll address these questions:
1) What is the Insanity Defense?
2) Can the insanity defense be used if the act was premeditated?
3) How easy is it to use the Insanity Defense?
4) How does mental illness play into the insanity defense?
5) Is the insanity defense a get-out-of-jail-free card?
6) Yes, yes, Hollie. But what about Holmes and the Aurora shooting?

Truth be told, I was not very literate on the insanity defense before doing research for this blog post. All I knew was that people’s ideas about the insanity defense were wrong, and that it was neither a “Get out of Jail Free" card nor as easy to use as people think. So, this blog post was rather enlightening for me as well.

1) What is the Insanity Defense?
The insanity defense is a plea that the defendant is not guilty because he was unable to realize his actions were wrong or was unable to appreciate the wrongness of his actions. There are two major insanity defenses: cognitive insanity and volitional insanity.

Cognitive insanity is more commonly used than volitional insanity. As defined by the, “Under the test for cognitive insanity, a defendant must have been so impaired by a mental disease or defect at the time of the act that he or she did not know the nature or quality of the act, or, if the defendant did know the nature or quality of the act, he or she did not know that the act was wrong.

Volitional insanity, referred to as “irresistible impulse,” is where a person acknowledges he knows in general his actions were wrong, but at the time he committed the crime, he was unable to stop himself from committing the crime. The example provided by legal-definition is that of a mother who shoots and kills the suspected molester of her child. She knows her action was wrong, but in a fit of vengeance, she was unable to stop herself from killing the molester. The Irresistible Impulse defense is not admissible in most States.

For more in-depth definitions of the two, visit Insanity Defense and Irresistible Impulse 

 2) Can the insanity defense be used if the act was premeditated?
The simple answer is yes. I do believe the confusion arises from the way the term “temporary insanity” has become so popular in our society’s language. Certainly, if a person is claiming “temporary insanity” then the insanity defense can’t be used if the act was premeditated (unless by “temporary insanity” a person means they were temporarily insane long enough to premeditate and then commit the criminal act. Yes, you can envision my raised eyebrow of disbelief at a person trying to pull that in a court of law). However, a person need not plead temporary insanity in order to use the insanity defense.

As explained above, the cognitive insanity defense is about committing criminal acts without being able to comprehend your actions were wrong, or being unable to appreciate the wrongness of your acts. A person can think about committing a crime without being able to understand what they are planning to do is wrong.

3) How easy is it to use the Insanity Defense?
A common misconception I have noticed during this Aurora shooting tragedy is that people think using an insanity defense is not only easy to achieve, but easy to win in court.

To start, I would suggest The Insanity Defense: Bad or Mad or Both as further reading for anyone who wants to find their way through the truths and myths about the ease of using (and winning) an insanity defense.

As William Reid points out in his article listed above, it is difficult to even bring an insanity defense into court. Getting a defendant to accept an insanity defense is the first major step in even bringing the defense into court. If a defense attorney can get their client to accept an insanity defense as their way of battling in court, the next step is convincing the judge and jury. Nowadays, the standard for an insanity defense are higher than they were even as little as 30 years ago. The reason for this is John Hinckley.

John Hinckley tried to kill President Reagan in order to impress Jodie Foster. He entered a plea of not guilty by reason of insanity, and won. This resulted in widespread public outcry and backlash against the current insanity defense laws. Idaho, Utah, and Montana removed the insanity defense from their law books completely, and many other states, as well as the US Congress, reformed their insanity defense laws to make it more difficult to use. While the insanity defense was not easy to win before Hinckley’s trial, it is even more difficult to win now, after his trial.

Unrelated to Hinckley, I’ll give you the example of Jeffrey Dahmer to put your mind further at rest. Dahmer was a serial killer who was insane enough to believe he could turn his victims into zombie lover-slaves. He also ate pieces of his victims, dismembered them, and other such disturbing things. This guy was suffering from some sort of mental illness, no doubt about it.

However, his attempt at an insanity defense failed, he was found guilty, and sent to prison. If Dahmer could not win an insanity defense, then we should be reassured it is not as easy to win as people think. This also leads to the next question about how mental illness plays into the insanity defense.

4) How does mental illness play into the insanity defense?
The most important thing to realize is that legal insanity and medical insanity are not the same thing. Using the insanity defense in court does not mean a person has been diagnosed with a mental illness, though it is the case that a person who uses the insanity defense does have something mentally wrong with them.

On the flip side, being mentally ill does not automatically mean you have to use the insanity defense, or even that you automatically can use the insanity defense, in court. For example, as I pointed out above, Dahmer was one crazy, crazy cat, but that didn’t win him a not guilty by reason of insanity.

So, just because a person is mentally ill does not mean they can use that as an excuse. Mentally ill people can be cognizant of their actions and commit crimes willingly and knowingly just like people who are not mentally ill.

Refer to the article below, "Drawing a line between criminals and the criminally insane," for further reading.

5) Is the insanity defense a get-out-of-jail-free card?
Yes and no.

Yes, you won’t go to prison if you win with an insanity defense, so in that respect you just received a “Get out of Jail Free” card, of sorts. However, you still are institutionalized. The institution just happens to be a mental institution instead of a prison institution. More specifically, a locked psychiatric hospital.

The major hang-up seems to be that people think psychiatric hospitals are cushy little resort get-aways that “criminals” get to go to if they win an insanity defense. To people who believe that to be the case, I will respond to that with a big, fat: Shut-up, you freaking moron!

Spending time in a mental institution is no cake walk. You’re in a locked psychiatric hospital, for cripes sake. They have rules, schedules, people telling them what they can and cannot do. It’s like a prison, except perhaps less violent and the boarding may be better.

Also, as Phillip Lally points out, “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.Drawing a clear line between criminals and the criminally insane.  

That could mean John Smith, the sane criminal who killed a woman, only gets 15 years in prison, whereas John Black, the man who got "not guilty by reason of insanity" could end up spending the rest of his life in an institution, because his doctors and judge never view him as healthy enough to return to normal society. 

6) Yes, yes, Hollie. But what about McCrazy and the Aurora shooting?
First, Holmes will be handed no “get out of jail free” card if he is able to win an insanity defense (assuming he will even enter one). He will be in a psychiatric hospital, with rules, regulations, and doctors evaluating him all the time.

Second, just because he premeditated the crime does not mean he cannot enter an insanity defense. He could have planned this for 20 years and still enter an insanity defense, though it is likely he wouldn’t get far with an insanity defense if there is evidence he planned this for 20 years. The longer an act is premeditated, the less likely an insanity defense is going to work.

I’m not going to speculate whether he would be successful with an insanity defense or not for two reasons. 1) I am not informed enough about the insanity defense to intelligently speculate (oxymoron!) one way or the other on the success of an insanity defense for him. 2) It seems too early on in his trial to even think about it. We don’t know anything about his mental state or why he did what he did to say if an insanity defense would be possible.

Here’s a video if you care to look into it at this early stage: Could James Holmes use an insanity Defense 

Further reading on the insanity defense:

For most of the research I did, the links are included in the posts. For information on Dahmer and Hinckley, I simply looked on Wikipedia.

This information is also specific to the US. The only thing remotely related to a foreign country is the further reading links about the M’Naghten Rule, dealing with the Scotsman Daniel M’Naghten. 


  1. Good discussion of the insanity defense. Many people do not understand how difficult it is to raise the defense and actually succeed in convincing a judge or jury. Additionally, even if they succeed the individual will possibly spend time in a psychiatric facility then they would have received if they were sentenced for the crime itself(although in the Holmes case he will likely be facing life or the death penalty). Once institutionalized the person will typically be there until a provider/board determines that they are no longer a threat to society. Given the liability risk for the state they would be very reluctant to let a person like Holmes out. Good analysis.

    1. Thank you :)

      I did not even understand how difficult it was to raise the insanity defense until after I researched for this blog post (though I had realized that is was not as easy as people supposed it to be).

      Writing this post made me realize once more how heavily influenced people are by ideas put forth by Hollywood and the Media.