Posted on 12/11/2001 3:33:12 PM PST by Bowana
Guilty but insane:
New criminal plea makes sense
INSANITY CARRIES with it an innumerable host of burdens and one very nice fringe benefit: the ability to get away with murder. If one state legislator has his way, however, that benefit will be removed.
Rep. Marshall Quandt, R-Exeter, has sponsored a bill that would replace New Hampshire’s “not guilty by reason of insanity” plea with a “guilty but insane” option. The bill was requested by New Hampshire resident Ken Goodall, who wisely observes that a “not guilty by reason of insanity” plea “is an admission of guilt” in the sense that anyone who uses it admits to committing the crime though he denies moral responsibility for it.
“Whether you understood what you did or not, you are guilty,” Goodall said. And he’s right.
Existing law was designed to provide the mentally ill with treatment instead of a prison sentence so they would get better instead of languish untreated in the slammer. That’s a nice goal, but it is subject to abuse. The mere fact that one of the two teens accused of killing Dartmouth professors Half and Susanne Zantop plans an insanity defense illustrates how easily this statute could be misused.
Rep. Quandt’s bill as written may not be precisely the correct answer. But it is a step in the right direction. Cold-blooded killers shouldn’t be able to escape punishment by feigning mental illness. And even mentally ill killers can remain a threat to society after completing treatment. We shouldn’t wait until one uses the insanity plea to beat the system, or until a released killer kills again, before we act to close this loophole.
This bill:
I. Changes the plea of "not guilty by reason of insanity" to "guilty but insane."
II. Requires that a defendant who is found guilty but insane shall, upon release from the secure psychiatric unit or upon certification that such person no longer suffers from a mental disease or insanity, be required to serve 25 percent of the time remaining in the sentence, or 25 percent of the time remaining until such person is eligible for parole, in a state prison facility.
The NH General Court bill search site: NH BILL SEARCH
Just enter HB1189 in the Bill number section for the complete status of the bill.
To read The FR Post of my column on the Wakefield tragedy that got me started on The "Guilty, But Insane" Bill:
The Depression Defense Should Not Be Allowed
The only concern raised so far was how this bill will work with NH's Truth in Sentencing laws. I had assumed (Yea I Know) that the minmum sentencing would just be changed to go along with the limitations in this bill. Maybe the date was cancelled to check the legality of this, I am not sure.
Truth in Sentencing means that A criminal HAS to Serve their Minmum sentence whether they have been on good behavior or not! (Good Law, but now it may work against me)
The bill changed when it got sent to the legislature. Originally this bill said that it "eliminates their right to be released until they are deemed competent to serve 25% of their sentence or 25% of the time to eligibility of parole in a State Prison Facility, not including time served in the Secure Psychiatric Unit.". The current version in the Legislature states that the criminal would "be required to serve 25 percent of the time remaining in the sentence, or 25 percent of the time remaining until such person is eligible for parole, in a state prison facility.
Depending what happens with the Truth and Sentencing, an amendment will correct this oversight.
One step at a time, and one committee at a time!
Existing law was designed to provide the mentally ill with treatment instead of a prison sentence so they would get better instead of languish untreated in the slammer.
Actually, existing law was designed in recognition of the fact that moral culpability depends upon intent. The only reason the legal concept of "insanity" exists is to distinguish between those who can form intent and those who cannot. If we wish to divorce legal culpability entirely from moral culpability, let's not try to disguise that fact with an intellectually insupportable "guilty but insane" plea.
Personally, I think it would be wrong to hold an insane person legally responsible for a crime. A much better solution would be a law requiring that anyone acquitted of a violent crime by reason of insanity be permanently committed to a secure medical institution.
Makes a lot more sense then "Innocent by Reason of Insanity"!
Existing law was designed to provide the mentally ill with treatment instead of a prison sentence so they would get better instead of languish untreated in the slammer.
The "But Insane" part gives the courts the opportunity to put these people in the Secure Psychiatric Unit. Then when they are "Cured" they can still pay a small price for the CRIME THEY COMMITTED!
A much better solution would be a law requiring that anyone acquitted of a violent crime by reason of insanity be permanently committed to a secure medical institution.
There is no such thing as Permanent! Have you ever heard of Nathaniel Bar-Jonah?
The reason the plea is "not guilty by reason of insanity" is this: In order to be guilty of a crime, you need to have the mental capacity to form criminal intent. If you did not have the criminal intent, you are not guilty no matter what you did.
The insanity plea is that the accused did not have mental capacity to form criminal intent and thus could not commit a crime by his conduct, however bad, and is therefor not guilty.
Not understanding or comprehending one's actions should not make them innocent!
Makes a lot more sense then "Innocent by Reason of Insanity"!
No, it makes less sense than "not guilty by reason of insanity", for the reasons I mentioned. You may not like the results, but it does make sense to link legal culpability with moral culpability. It would also make some sense to entirely delink moral and legal culpability. It does not make sense to say, "We recognize your lack of legal culpability, but we're still going to punish you, only less harshly." The only sense that makes is political, which is not at all the same as real sense.
The "But Insane" part gives the courts the opportunity to put these people in the Secure Psychiatric Unit. Then when they are "Cured" they can still pay a small price for the CRIME THEY COMMITTED!
Actually, they could be hospitalized for part of their sentence even without the "but insane" fig leaf. If you are so set on exacting vengeance regardless of moral guilt, why not just find them guilty, period?
"A much better solution would be a law requiring that anyone acquitted of a violent crime by reason of insanity be permanently committed to a secure medical institution."
There is no such thing as Permanent! Have you ever heard of Nathaniel Bar-Jonah?
One problem with this analogy is that Bar-Jonah had been convicted in Massachusetts, not acquitted. Hardly a good poster boy for the efficacy of the criminal justice system.
Secondly, under my proposed reform, judges, psychiatrists, lawyers and bureaucrats would be irrelevant once the jury reached its verdict. Confinement for life would be mandatory, and there would be no provision for judicial review in any case.
My plan has one big practical advantage over the proposed plan: it would actually protect people from violence. The New Hampshire plan would actually release these people early (they would be required to serve only 25% of their remaining sentence after they were declared cured). But it will make politicians look "tough on crime" and garner lots of votes, and will porbably pass by a wide margin.
The problem is that you insist on defining the moral content out of the concept of guilt. If the child is too young to form the intent to break the thing (or to act carelessly resulting in the breakage), then the child is not "guilty" in any moral sense of that word.
Not understanding or comprehending one's actions should not make them innocent!
Well, when you get to be God, you can create a universe that obeys your moral rules.
That is true, but during his prison term He was found to be mentally incompetent and sent to a mental institution. Then several years later He "Found God" and eventually a couple doctors determined him to be cured!
Same thing Can happen with those found innocent by reason of Insanity!
Truth is I do like your plan Too! Actually better then mine, but as you said, mine may pass.
Since the victim of a murder is just as dead if his murderer was insane, what difference does the state of mind make? Do we punish the deed or the intent?
Why are the insane not responsible for their actions? I guess I don't understand the ROOTS of mens rea after all.
Can some legal beagle give me a nutshell version of the doctrine's derivation?
YES, it is going to be a tough battle.
My point is this, once an insane person is capapble of understanding and comprehension, then that person is capable of understanding what they did and that there is a price to pay for one's actions.
I found this on a legal website somewhere:
not guilty by reason of insanity
"This plea is more of a defense then a response to a criminal allegation. Technically a defendant will have committed the physical act constituting the crime but claim no legal responsibility because he or she was insane when the crime was committed. Since all crime must include criminal intent, the defendant’s insanity plea is recognized as a complete defense to the charge -- thereby making the defendant not guilty."
Don't like it, that's why I want to change it!
I happen to believe that genuine insanity is very, very rare, and I would not object to raising the burden of proof for a defendant who claims insanity.
What is the Purpose of the Insanity Defense?
An insanity defense is based on the theory that most people can choose to follow the law; but a few select persons cannot be held accountable because mental disease or disability deprives them of the ability to make a rational / voluntary choice. Such individuals need special treatment as opposed to prison; punishment is not likely to deter future antisocial conduct of these mentally diseased individuals.
As far back as ancient Rome, legal codes distinguished between those who were "lunatics" and not accountable and those who were sane and responsible.
The Shift in Perception
Before the 1970's, the public outcry over a jury finding a person "not guilty by reason of insanity" ("NGRI") was not nearly as great as it is today. In that time period, insanity acquitees regularly spent many years (even a lifetime) locked in institutions for the criminally insane. An insanity acquittal was a showing of compassion and a recognition of the cruelty to inflict punishment on someone who did not know his actions were wrong. More importantly, the public could rest assured that a person committed to a mental institution would not be walking the streets anytime in the near future (if ever).
In the past twenty years, however, this country has seen a more rapid release of NGRI's from hospitals. This pattern of early release is due to two factors: (1) court rulings that insanity acquitees are entitled to the same constitutional due process and equal protection rights of civil patients; this makes it more difficult to keep an individual in a hospital after recovering from mental illness; and (2) advances in psychiatric treatment. Thus, for the very first time, large numbers of NGRI's could return to the streets. Accordingly, the public is less receptive to a NGRI verdict because the length of confinement may be exceptionally short and a person released is able to exert all rights of a regular citizen; as the person technically has not committed a crime.
In order to fully understand the controversy surrounding the defense of insanity, it is necessary to trace its roots through history -- beginning in 1843 -- when the first uniform insanity rule was developed.
Moral status perhaps, but not outcome. The victim is still dead. If we demand retribution for damage, where is the retribution for this offense? How is justice served -- moral component aside -- if a man is dead and the killer suffers no punishment at all? Where is the balance in Justice's scale?
I happen to believe that genuine insanity is very, very rare, and I would not object to raising the burden of proof for a defendant who claims insanity.
"Insanity" is not a medical term. It is a legal term only. It is a negation of the Latin "sano," usually translated as "sound," as in corpore sano, a sound body.
By definition, in-sanity means mental unsoundness, the inability to distinguish right from wrong. In other words, the inability to form criminal intent.
Two elements are necessary for the commission of a crime uner Western law: mens rea, or criminal intent, and actus reus, a criminal act.
Various legal opinions oppose the necessity of criminal intent, arguing that any act which is socially harmful is itself sufficient to a crime, and that moral culpability is not an essential element. (Allard v. Selfridge, (1925) ...).
I'm wondering about the common law roots of the doctrine. From where does it derive? Is is Talmudic? Roman? English? Byzantine?
The background provided by Bowana seems to indicate the deference was tied to rehabilitation.
Since there is not generally a rehab consideration in capital cases one wonders how the two got together.
Translated from Lawyerese:
"Whoops! I killed someone. I didn't REALLY mean to do it. I mean, there was no criminal intent on my part, so it's not REALLY murder is it? It was just an honest mistake.
Leaving aside the absurdity of any attempt to remove the moral component from justice: when death is the result of a crime, justice does not require that anyone be punished.
I would suggest that it's equally absurd to try to INCLUDE a moral component, since such inclusion demands universal agreement on the abstraction known as "morality." However, simple retribution is unequivocal, and requires no such component. You can argue that the demand for justice arises out of a morality, but it's hardly a vital component to its application. Simple arithmetic will suffice in that capacity. That's all I meant.
... when death is the result of a crime, justice does not require that anyone be punished.
Huh?
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