strikes indirectly at the mens rea requirement, introducing the
slippery notion that the accused had partial, but not complete,
criminal intent. Second, it creates a lesser and included offense that
judges and juries may choose as simply a compromise verdict.
They believe the accused probably did something wrong and
deserves some punishment, but they are unwilling to bring in a
verdict of guilty on the top charge. The GMI verdict would allow
them to split the difference. Finally the GMI verdict is fraudulent on
the issue of treatment. As proposed, it makes no provision for
treatment of the person who has been declared mentally ill.
The GBI option has already proved to be a bogus reform. A 1981
Illinois law added the GMI as an additional verdict, retaining the
traditional insanity defense. In Cook County, verdicts of not guilty
by reason of insanity actually increased from 34 to 103 between
1981 and 1984. At the same time GMI went from 16 in 1982, the
first year the option was available, to 87 in 1984. There has been
much evidence of a “hydraulic” effect that was contrary to the law’s
intent. In both Illinois and Michigan, GMI verdicts involved people
who would otherwise have been found guilty, not defendents who
would have been found not guilty by reason of insanity (Walker,
1994;155-156).
The real function of the GBI option is to appease public opinion.
The public has little concern for the details of what actually
happens to a mentally ill criminal defendent. Basically, it wants a
symbolic statement of “guilty.” In practice, the GMI verdict has as
much meaning as “guilty but brown eyes.”
How dangerous is the GMI verdict? As we say with the NGI
verdict, many extremely dangerous mentally ill criminals were
simply released onto the streets where they committed the same
crimes. Does the GMI verdict solve this problem? We have some
“natural experiments” on this questio rising from some court
decisions. A 1971 decision forced to reassessment of 586 inmates
of Pennsylvania’s Fairview State Hospital for the Criminaly Insane
who were placed there under the GMI verdict. Over two-thirds
were eventually released. Over the next four years, 27 percent
were rearrested. Eleven percent were rearrested for violent crime.
Including some others who were rehospitalized for a violent act, a
total of 14.5 percent of those released proved to be dangerous.
ABOLISH THE INSANITY DEFENSE
Abolishing the insanity defense is easier said than done for the
simple reason that the mens rea requirement remains a fundamental
legal principle. The proposal that “mental condition shall not be a
defense to any charge of criminal conduct” could be interpreted in
one of two ways. The broader interpretation would mean that
absolutly no aspect of mental condition could be taken into
account. In effect, this interpretation would abolish the mens rea
requirement altogether. The prosecution would not have to prove
anything about the accused’s mental state. This is unneccessarry.
For one thing, it would wipe out the distintions that separarte
first-degree murder, second-degree murder, and manslaughter. It
is doubtful that anyone againt the insanity defense would choose to
take this approach. So sweeping, in fact, would be it’s effect, that
it would probably be declared unconstitutuional.
A more limited reading of the wording “mental condition shall not
be a defense to any charge of criminal conduct” would mean that
an affermative plea of “not guilty by reason of insanity” could not
be raised. The crucial distinction here is drawn between
affermative and ordinary defenses. An ordinary defense is simply
an attempt to shown that the prosecution has failed to connect the
accused with the crime, a defense used in everyday law. An
affermative defense is raised when the prosecution has connected
the accused with the crime, as in an example of self-defense. The
defense argues that, yes, the accused did shoot and kill the person
and did so intentionally, but because the act was commited in
self-defense the accused does not bear criminal responsibilty for it.
The same is true in the case of a criminal act commited under
duress. The insanity defense, in this respect, is an affermative
defense. It is this usage that needs to be abolished. In cases such
as self defense it may be an adequate and totally acceptable
defense, for in how many cases do you hear of a man being
aquitted due to a self-defense plea returning to the streets in order
to kill again? To draw a comparison between the two and argue
that both defenses are neccessarry to the total order is naive and
unfounded.
CONCLUSION
The law of insanity involves the conceptes of mens rea and
punishments, as does the criminal law in general. Insanity is a legal
concept, not a medical concept, and insanity is defined within the
context of an adversary system wherin psychiatrists and lawyers
battle one another over the meaning of terms such as “right and
wrong” and “ability to control one’s behavior.”
Mental illness and mental disease are psychoanalytic concepts, not
scientific concepts. Mental illness is defined by talking to people or
by giving them written tests, and there is no agreement among
psychiatrists as to the meaning of this illness or whether or not it
really exists. Some psychiatrists call mental illness a myth. The
psychoanalyst has not been successful in treating or predicting
mental illness.
The psychoanalyst has never established a casual relationship
between mental illness and criminal behavior. The insanity defense
would require both a mental illness and a relationship between the
illness and the criminal behavior, neither of which could be
scientificly established.
Of the criminals both aquited and convicted using the insanity
defense, a good number have shown conclusive evidence of
recidivism. Many dangerous persons are allowed to return to the
streets and many non-dangerous persons are forced into facilities
due to an insanity plea adding further confusion and injustice