With the recent rash of mothers committing such heinous crimes -- Laney, Diaz, Schlosser (not to forget Yates) -- are there any legislative rumblings about suggesting that these people be kept off the street for longer than the short-term?

If anybody is not guilty by reason of insanity, there seems to be even more reason for keeping them away from the general public. How about a verdict "guilty, but insane" and a facility for the criminally insane?

Senator Wentworth recently released a report on the issue. He is in favor of leaving the definition of insanity along but working on the procedural hurdles for holding an insane person in medical custody.

The thrust of recent court decisions involving NGRI's beginning with Roland, and continuing through the Campbell cases, has been to suggest, if not create, a de facto different class of persons subject to civil commitment - ordinary MH commitments and NGRI commitments. The problem is that the law is not now written that way and, in fact, whether the criminal court retains jurisdiction is discretionary. But if the case is transferred to the court having mental health jurisdiction, i.e. probate court, then the NGRI is treated very differently and subject to far less confinement. Across the country, however, there is data that NGRI's often serve as much time in confinement as they would had an insanity defense not been chosen.

The second issue, related, is that NGRI's are often confined in jail pending hearings -- which is against the Local Gov't Code, the Health & Safety Code and two AG's opinions -- because the mental health folk don't want to take the patient! In Harris County, a judge had to threaten a MH facility with contempt to get them to take a NGRI acquitee pending a hearing on the MH commitment.

I agree that we, in Texas, need to get clear what law applies, and apply it.

flj

That is good news about the post-verdict proposals, but I have got to wonder whether leaving the definition of insanity alone may be an impediment to meaningful changes. Only if it is recognized that insane perpetrators committed a crime do we start from the proper basis. The seriousness of the circumstances are understood. When a person is found NGRI, it is as if the crime is irrelevant in considering the perpetrator's future.

After a guilty verdict, however, it could then be determined whether a person is insane and, if found so, they could be streamed into an alternative long-term medical facility rather than the general prison population. This scheme would bear a similarity to the sudden passion defense and the capital sentencing scheme too, i.e., a determination of guilt and then a determination of future dangerousness and mitigating circumstances. Is there a compelling reason for treating sudden passion and insanity differently? They are very closely related concepts: both embrace short-term madness.

You are arguing for a "guilty but mentally ill" verdict, for which in my mind there are reasonable arguments. The problem now is that NGRI's are, indeed, acquitted and the post-dispositional proceedings of a civil sort do not, in fact, address the index offense. Rather, the basis of commitment is (a) mental illness and (b) dangerousness or deterioration based upon (1) a recent overt act -- and recent is the key as the courts have commonly thought of a matter of a few weeks or months, because we can't commit Aunt Minnie who is demented at 70 for slapping a school teacher at age 16 (or stabbing her for that matter) -- or (2) a "continuing pattern of behavior" which, again, is based on recent behavior. Thus, it is improper (under present law) to replay the facts of the index offense in post-dispositional civil commitment proceedings.

But, it is often done (replaying the index offense), I believe improperly. So your solution is one that if it had legislative support would more closely comport with what is done. I am but troubled that we don't follow the law that is extant now....Some of us have the naive belief that we take the law as we find it and attempt to be faithful to what it says. And if it is changed as you suggest, so be it.

As an aside, I am aware of no filed bill which proposes same. Rather, there is a move to re-institute the 2nd prong of the ALI standard into an insanity defense, i.e. inability to conform..

flj

There will be a bill filed to beef up the supervision over NGRI acquittees, as suggested by the Senate Jurisprudence Committee's interim report (see the Legislative page for a link to those reports).

There is no interest in the legislature for a "guilty but insane" verdict.

There is a group of "stakeholders" -- defense lawyers, professors, shrinks, and mental health advocates (but not us prosecutors -- we weren't invited) -- who have been working on a revision of the definition of insanity (as mentioned above by Dr. Floyd) AND on instructing the jury as to the effect of their verdict at guilt/innocence ("we'll lock up this person for a long, long time if you find them NGRI, so find them NGRI" -- or words to that effect, if they have their way, no doubt).

Thoughts?

Yeah, right (viz. lengthy and well conducted treatment).

When I entered graduate school the 1st time in 1961 there were 50,000 persons in 10 or so state MH/MR facilities -- they grew their own food, had housing, and persons who care for them (this was but 5 years after Thorazine was invented).

Now, we still have the same number of facilities but only 4500 or so residents. The other 45,000 wander around the streets of our largest cities, lying in the doorways of those institutions that are dedicated to the preservation of their "liberties", covered in their own filth and excrement and we call this "progress." So who intends to actually fund treatment if ordered? Remember the incompetency cases and NGRI's "count" against the bed days awarded our local MH/MR centers in state facilities (in facilties other than Vernon). So for every bed day used, there are fewer available for local individuals who need treatment with or without the necessity for civil commitment.

But Shannon, thanks for the legislative update.

flj

What are the primary arguments for not going the "guilty, but insane," route? There is very little justice in the way these offenders are presently handled. They are responsible for the crime, even if their particular circumstances justify a sentence other than penal incarceration. Have we so fostered the notion of the insane offender as a "victim" that we care more for the offender than the victims of their crimes? What comfort for the deceased and the victim! How about the safety of the community?

[This message was edited by John Stride on 01-19-05 at .]

The primary argument against a "guilty, but insane" verdict in the law is that it is an oxymoron. Crimes of moral turpitude require an actus rea AND a mens rea (not sure of the spellings). To remove the criminal mental state required to commit a crime would be to treat the act alone as a crime. That is not just.

The experiment in de-institutionalizing seriously mentally ill people(a/k/a "warehousing" by the so-called friends of the seriously disturbed)foisted on us in the early 1960s, is a human disaster. One of the unintended consequences of that foolish decision is that seriously mentally ill people who violate the law, are now handled by the criminal justice system, rather than the state mental hospitals. All the legislature has to do, to greatly improve the situation, is revive the mental committment statutes in place in 1961, and fund the state mental hospitals at the same level, proportionally that they funded them in 1961.

Terry, you are so right about the mentally ill walking the streets. You see them in every city, many towns, walking the roads, and sleeping under underpasses -- people labelled as drunks and dropouts, but who often lack life skills and merely survive as the homeless. Was it the medical profession who cast them out in the sixties?

I also understand that, as presently defined, insanity means that the defendant did not know he was doing wrong and, thus, he lacked the culpable mental state. Perhaps that is the flaw.

Try this for primitive psychology. There is no doubt these individuals intended to act out their impulses, they did so. Most did so, moreover, knowing at one that what they did was against the law. At the time of their actions, they merely "answer" to a different authority which overrides our law.

Insane is a legal term. It means 'not responsible'. Mental Illness is a medical term. It means sick. One can be 'not responsible', that is, insane, because their illness rises to the statutory definition of insanity, so that they did not know it was wrong (the current Texas rule). Therefore, as an earlier commenter states, the critical mens rea is missing.

Accordingly, by definition one can't be 'insane' but still responsible. Oxymoron. One can, however, be mentally ill but responsible.

If we think more people need to be held criminally responsible, we need to look at the definition of insanity.

If we think more people need to be treated, we need to look at the commitment laws, both civil and criminal.

Certainly we can look at both insanity and commitment, but we'll never all agree where to draw the line. Society needs to be protected and people need to be held responsible for their voluntary acts. But Liberty is highly prized by us all and we can't lock up everyone who is mentally ill, nor should we.

And then there is the truly touchy issue -- what if we think indeed that in fairness an actor is 'not responsible', but are worried not so much about their own treatment as the safety of society? Where does the police power of the state rightly intrude into the future life of one who is not responsible for their past actions? As we have seen in discussions on post-conviction commitment of dangerous sexual predators, the courts do agree (and rightly so) that society can use its police power to confine someone for treatment if the purpose is to protect society and provide treatment.

The problem is that we can't quite agree when someone who was found insane ("not responsbile") is ready to live freely among us. The heinous nature of the offense makes us seriously skeptical, and again, perhaps rightly so, when an expert says that they are better and not dangerous anymore, they are taking their medications and aren't likely to kill another group of children or whatever.

Some type of long term medical probation seems in order for some of these folks. I have not seen that kind of concept discussed in law before, but perhaps we should think about it. If they have a lifetime disease or defect and commit an act that would be a felony (and they blame the crime on that disease or defect, which is what they are doing by claiming insanity), perhaps an ongoing medical probation, where they check in regularly with those who monitor for deterioration and compliance, would give both the maximum freedom to the currently compliant person but yet give society the ability to watch for symptoms before deterioration causes the next killing or crime spree. If I claim that I have a serious mental illness that cannot be cured and that caused me to kill someone, and that it would be unfair to hold me criminally responsible, but my illness is expected to recur my entire life, don't I suggest to society that someone needs to watch out for possible future episodes of deterioration for the duration of my life?

Just a thought ~

A.D.

If insanity is untouchable, how about the option of "guilty, but mentally ill" as previous posters have suggested? I must confess I was unfamiliar with this option, so if anyone has more information or resources on the option would they please share?

Meanwhile, would it make proceedings unmanageable to offer juries, (1) guilty, (2) not guilty, (3)guilty, but mentally ill, and (4) not guilty by reason of insanity? This offers the prospect of refining the system and streaming those mentally ill but guilty into more permanent accomodation and reserving the insanity defense for the very few. After all, not all types of mental illness render a person insane but there is no middle ground for a troubled jury.

Having spent a little time on the internet, I have now discovered that approximately 13 states have the guilty but mentally ill (GMI) verdict. Apparently, the Hinkley case spawned the states to change their laws.

GMI has had its share of criticism, what hasn't, but some of problems identified in other states could certainly be remedied if we learned from their experiences. Does any prosecutor have any personal experience with GMIs?

[This message was edited by John Stride on 01-19-05 at .]

The Senate interim report is brief and relatively informative, as these things go. It includes a short mention of "guilty but insane"/"guilty but mentally ill"/"guilty except for mental illness" (the possibilities are endless ...) and concludes that they are, in the end, a distinction without much difference from the current NGRI. Check it out here:

Report (see Charge #4)

My biggest frustration with this topic is the frequent criticism of the criminal justice system over something that should be a mental health system issue. Why are we to blame for the failures of social science? By the time we get some of these folks, they have been under medical supervision for decades, without success. And all of a sudden it's ourfailure? I don't think so.

Anyway, I'm glad to see everyone so interested in this topic. There will be plenty of opportunities to speak your mind on it during the session, so don't go getting shy on me when that time comes!

Of course, to be meaningful GMI must be something different from NGRI. Maybe this is how Texas can distinguish itself from the other states. Surely we can create a distinctive and effective diversion scheme for GMI offenders that offers both long-term safety for the community and long-term institutional care for the offenders? Isn't justice better served by recognizing that not every offender with a mental illness is either guilty or insane? As a society we have become far more sophisticated at assessing mental illness since the genesis of the insanity defense all those years ago in England. As the USCT recognized in Atkins, evolving standards of decency require re-evaluation of our laws. Perhaps we can beat them at their own game!!!

The "stakeholders" that Shannon mentions have three goals. First, they want to change the insanity defense in Section 8.01 from its current language to provide for a defense when someone, because of their mental illness, does not "appreciate their conduct is legally or morally wrong." (instead of "did not know their conduct is wrong")

Second they want to give an instruction that tells juries the consequences of an NGRI verdict.

Third, they want to overhaul Article 46.03.

There are a couple of reasons why they want to change Section 8.01. First, they don't think it is fair for us to argue to juries that people should benefit from the insanity defense only when they didn't know their actions were "legally wrong." In other words, they don't like us limiting the defense to "legally wrong" when the penal code, by its own terms, doesn't include that language. Second, they want to tinker with the concept of "knowing" something is wrong. They want to extend the benefit of the insanity defense to individuals who in the back of their mind literally know that society will regard their actions as "wrong," but, because of a psychotic state, cannot put that knowledge in a context that allows rational decisions -- that is to say, they cannot "appreciate" the wrongfulness of their conduct.

These proposals to change Section 8.01 are about extending the benefit of the defense to a broader group of people. I also think they stem from the popular misconception that the insanity defense is "broken" because the Yates and Laney cases turned out differently. In any event, to evaluate these ideas properly, I think we need to be very clear about what the insanity defense does or is supposed to do. I disagree with the notion that the insanity defense is for people who lack the mens rea to commit a crime. The vast majority of mentally ill people can and do form the mental state to commit their crimes. For example, they intentionally gouge out other peoples eyes, they intentionally put babies in ovens, they intentionally shoot other people... We don't excuse them because they lack a mens rea. We excuse them because, as a society we have made a judgment that some people's criminal actions are so much a product of their illness that they should be relieved of moral/criminal culpability. Under the current scheme, we excuse people who, as a result of their serious mental illness, don't "know" their conduct is "wrong." I think we draw the line there because we have a notion that, if you don't know something is wrong because of a mental illness, it is hard to say you are "morally" culpable for the choices you make.

The people who favor "legally and morally wrong" are of the opinion that the word "wrong" in the current defense gives juries no real guidance about the scope of the defense. They suggest there is too much room for unfairly disparate results that are entirely based on what different juries happen to think the word "wrong" means. I can see that point in an analytical sense, but I think changing the wording to "legally and morally wrong" would be an enormous mistake. If it is hard to litigate what "wrong" means now, can you imagine what it would be like to litigate "legally and morally wrong?" Precisely whose morals are we talking about?

As far as changing the word "know" in Section 8.01 to "appreciate," this, too, is an effort to expand the black letter limits of the defense. Currently, we have to litigate what it means to "know" something is wrong. If the defense were changed to "appreciate," we'd have to litigate what that word means. Both are hard concepts to reduce to actual courtroom presentation. I have a difficult time imagining an individual who "knows" their conduct is wrong, but who also cannot "appreciate" what that means. (Epistimology 101 in the courtroom...?) I'm curious to hear what people think about this part of the proposals.

The proposed jury instruction changes are prompted by the idea that jurors bring preconceived notions to NGRI cases. They think jurors believe that if they find someone NGRI, they'll wind up in the elevator with the defendant. Put less sarcastically, they think that jurors believe that an NGRI verdict effectively puts the defendant on the street. They reason that, if jurors have this belief, they are more likely to choose a guilty verdict than an NGRI verdict.

In my experience, to the extent jurors actually bring a preconceived notion to the courtroom, it is the opposite one. Some jurors seem to be under the mistaken impression that we have the tools to supervise NGRI acquittees over the long term.

The real problem with a jury instruction in this regard is that, as things stand, you can't possibly give a jury a good idea of what will happen following an NGRI verdict. Article 46.03 is a terrible mess, and we really don't have the tools to supervise these acquittees properly. Frankly, I think that, to reflect reality, a jury instruction under the current scheme would have to say something like this:"You are instructed that, if you find this defendant NGRI, the State will seek to have him committed for inpatient treatment, but we have no idea how long we will be able to secure treatment for him, the mental hospitals are going to want to cut him lose as soon as possible, and, in any event, we have no way to insure he stays medicated."

If it is actually true that juries bring preconceived notions to the courtroom, I don't really have a theoretical problem with telling them what happens following an NGRI verdict. I would oppose such an instruction under our current scheme because it would be impossible to give them an honest idea about the post acquittal system without scaring the hell out of them.

That brings us to the third set of proposals that seek to fix Article 46.03's post-acquittal provisions. Under the current scheme, Article 46.03 basically imports the civil commitment criteria into the criminal context, and the civil criteria are woefully inadequate to deal with violent mental patients. The civil commitment process contains numerous procedural safeguards to make sure people are not improperly committed. These safeguards aren't necessary in the criminal context where the individual has already been adjudicated violently insane -- usually based on evidence supplied by the defendant himself. Under the civil scheme, you can force medication on someone only in very limited circumstances. However, I think most people agree that someone found NGRI of a violent offense should be forced to take medications that can control their illnesses.

The bottom line on 46.03 is that it needs to include procedures that give us tools to keep track of violent NGRI acquittees, to force them to stay medicated, and to keep them committed to inpatient treatment on a longer basis than the civil criteria allow. There are some good ideas floating around out there about 46.03. Some of these include making TCOOMMI resources available to NGRI acquittees, using probation resources to keep track of patients who are subject to outpatient treatment, changing the commitment criteria, allowing for forced medication, providing for victim notification, etc.

My impression is that on the issue of changing article 46.03, there is broad consensus. The jurisprudence committee report endorsed this idea, and everyone seems to want the same basic things.

I could live with a jury instruction that told juries about the consequences of an NGRI verdict if Article 46.03 actually included sensible procedures and you actually could give a jury a reasonably accurate idea about what happens post-acquittal. Such an instruction would be similar to the parole instruction juries get under Section 4 of Article 37.07. I don't particularly like those instructions, but I don't think it would be the end of the world to see something similar in the NGRI context.

I don�t like the GMI scheme. I think that if we are going to have an insanity defense, we should draw a line where we excuse people from criminal liability. If you aren�t responsible for your violent actions, then you should be treated in a mental health system that actually has the resources and teeth to protect the public and insure proper treatment. I don�t think it makes sense to excuse someone from criminal culpability on the one hand, but to say they are �guilty� on the other. If you are mentally ill but you don�t fall into that class of people whose conduct is excused, then you should be treated just like everyone else. Mental illness then becomes an issue that can be considered during the punishment phase of a trial and can be treated as a medical issue by TDCJ or a community supervision department just like any other medical issue.

[This message was edited by Kevin Keating on 01-19-05 at .]

... and now we all know why Chuck Rosenthal chose Kevin to run interference for his office on this thorny issue ...

Don't give in to the notion that we should instruct juries on the consequences of a NGRI verdict. The current law is clear: we don't do it, and appellate courts have upheld that standard.

If we open that door, there is no doubt in my mind that juries will be subjected to a lot of false information and there will be endless litigation on whether the jury was improperly influenced by the particular statements in a given trial.

In a trial I participated in, the defense had their expert testify that the defendant, who was clearly crazy, could be given "long-term treatment and confinement." Oh, please.

I argued the defendant violated the statute for no information and the judge allowed my expert to testify "there is no such thing as long-term treatment and confinement."

And, of course, the defendant raised the issue on appeal. Fortunately, the appellate court agreed the defendant had opened the door, but it showed how manipulative and endless such arguments could be.

In any event, if there were such an instruction, like the parole instruction, it would have to conclude by telling the jury not to speculate on what consequences would befall the defendant in his particular case. So, what is the point, except to confuse and mislead the jury and perhaps get someone on the jury to form the false conclusion that all will be safe in the world if there is a NGRI verdict?

We don't need to introduce this sort of additional confusion in an insanity defense case. It does nothing to focus the jury on making a decision on the facts and everything to get them to make a decision that fits their unsupported opinion of what should happen to the defendant.

When I was teaching Mental Health Law at TWU law school, year after year my students argued with great enthusiasm on both sides of the 'did not know it was wrong' issue. Talk about a slippery slope!

If I am a terrorist who in my heart truly believes that I am divinely chosen to blow up people, did I 'know it was morally wrong' to do so? How is it possible that it was wrong, when I was serving the Almighty? Does extreme twisted religious fervor (and I am not talking about delusional psychotic people who have auditory hallucinations or about people who happen to both be people of faith and also mentally ill) excuse a crime under a definition that excuses someone who did not know it was 'morally wrong'? All you need is an expert who will testify for the defense that the religious fervor rises to a mental illness, and you are nearly there. I am not saying that mentally ill people cannot also have religious delusions -- we see that often. But we also see some extremists who would not qualify as mentally ill but who blame much violence and killing on their version of God, to the dismay of people of peace and genuine faith.

We need to stick with 'legally wrong'. And we need to stay away from anything that allows a defense merely because it is a 'product' of mental illness. That is a wide, wide door and would excuse people who know that something is legally wrong but do it anyway.

At the risk of belaboring a topic which has, is, and will receive enormous attention during this legislative session, I offer these comments:

First, I am personally less concerned about the definition of insanity per se than in post disposition proceedings. Whether we re-institute some variant of the second prong of the ALI standard removed in 1983 or thereabouts, is an issue of concern to many and Kevin nicely framed it.

Second, from a conceptual level, the fundamental issue is whether NGRI's constitute a separate class of persons subject to commitment than other individuals. Much of the discussion would be different were this matter absolutely clear.

Many might prefer that NGRI's be subject to continued treatment essentially under the police power of the state regardless of whether ordinary civil commitment criteria are met -- mental illness, dangerousness or deterioration, as exhibited by a "recent overt act" or "continuing pattern of behavior".

Current law is written quite differently and does not entertain the notion that NGRI's are, indeed, a different class of persons subject to commitment -- though as I noted earlier, the Roland and Campbell cases move in that direction. But see, for example, H&S Code 574.035 wherein is stated that the judge may "advise but not compel.." the patient to participate in treatment, take medication, or avoid illicit drugs and/or alcohol. Forced medication is a separate issue, requiring a separate petition, and separate proceeding from mere commitment. Other portions of the statutes prohibit confining civilly committed persons in jail (note our recent case, Kevin, about which you know). But we often do.

Therefore, in my judgment we (as a state) either need to clearly differentiate NGRI's as a separate class subject to separate proceedings -- and the MH community is not likely to be good at enforcing any compliance related thereto -- or, we need to treat them just like any other person civilly committed. But, the former would require some extra funding and shouldn't be placed as an additional burden on our already overly burdened local MH/MR centers. And, for that matter, NGRI bed days in state facilities shouldn't be counted against local bed days so as to deprive persons needing care from access to the same.

flj

The jury in a sexual predator committment case is not allowed to hear what will happen as a result of their verdict, and it seems a little cynical to presume they should not know. Because of the wide range of possible treatment options, maybe it would only serve to muddy the waters. Likely that same argument could be made regarding treatment of NGRI subjects.

What is maybe most unsettling about where the current debate is focused is, there is so little attention directed toward prevention. I certainly want to, and think I really do, believe that if Andrea Yates had gotten proper attention in response to the apparently ample warning signs, her acts likely would not have occurred. May be an oversimplification, but it looks like we will spend lots of money and other resources dealing with people like her, should we not bet more of it on trying to keep people from getting hurt in the first place?

I do go along with the sentiment that emerges here suggesting that people who are committable but not dangerous are or should be in a different class than those who prove themselves capable of actions that would be serious crimes but for the mens rea. Anyone else think it ironic that we devote so much brilliant argument to precisely defining something as incomprehensible as the precise mental state of an insane person?