Episode 131: December 29, 2012
By Adam Freeman
Today’s topic: The Tucson shooting and the insanity defense.
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
Can Jared Lee Loughner Plead Insanity?
There’s been a lot of discussion in the media about the insanity defense since January 8, 2011, when a young man named Jared Lee Loughner allegedly shot and killed 6 people, and wounded 14 others, including a US Congressman, outside a Safeway store in Tucson, Arizona. Because of Loughner’s reported mental instability, speculation is growing that he will try to mount an insanity defense. As I’ll explain in a minute, Loughner may well invoke the insanity defense, but it will be very difficult for him to prevail at trial.
What is the Insanity Defense?
As I explained in an earlier article, criminal law generally requires prosecutors to prove not only the physical act of a crime, but also a mental element (technically known as “mens rea”), meaning that the defendant committed the crime intentionally.
When it comes to murder, the mental element--known by the somewhat archaic phrase “malice aforethought”--consists of an intent to kill, or an intent to do something that was substantially certain to result in death. In some states, there may be other mental states that qualify as murder, such as “extreme indifference” to human life.
The insanity defense is essentially an attempt to prove that the defendant was incapable of forming the intention required for criminal guilt. If a defendant can establish this defense, the verdict is “Not Guilty by Reason of Insanity.” This does not mean that the defendant can go free--the usual consequence of such a verdict is incarceration in a government mental hospital.
Insanity May be Loughner’s Best Strategy
Loughner has been charged in federal court with the murder and attempted murder of the federal employees involved. Arizona state officials are also expected to file charges soon with respect to the non-federal employees. Based on the criminal complaint filed in federal court, and various press reports, the case against Loughner appears overwhelming. Various analysts have stated that the insanity defense may be Loughner’s best hope to avoid the death penalty or prison.
What Is the Legal Definition of “Insanity”?
Federal courts and most state courts follow the so-called M’Naghten rule for determining insanity. Under this rule--devised by the British courts in 1843--a defendant may not be responsible for a crime if, because of a “disease of the mind” he did know the “nature of his act,” or “did not know that it was wrong.” In other words, a person may have all sorts of nutty ideas, but unless he can show that his mental condition prevented him from understanding right and wrong, he won’t be judged criminally insane.
Evidence and the Insanity Defense
The federal insanity defense requires proof that the defendant did not understand the wrongness of his action at the time of the offense.
In 1984, following the successful use of the insanity defense by John Hinckley (who had tried to assassinate President Reagan), Congress passed legislation imposing a higher standard of proof on defendants, requiring “clear and convincing” evidence of insanity. Congress also specified that the federal insanity defense requires proof that the defendant did not understand the wrongness of his action at the time of the offense, as distinct from some general inability to distinguish right from wrong.
How to Prove Insanity
To establish an insanity defense, Loughner will have to undergo a number of evaluations by psychiatrists and psychologists. The evaluators will also be allowed to examine so-called collateral information. That could include interviews with friends and former classmates. It may also include analysis of the online musings that Loughner reportedly posted to various websites and YouTube.
As a result of TV shows and a few high profile cases--like the Hinckley case I mentioned--there’s a perception that lots of defendants get off on the insanity defense. But in fact, the odds are against Loughner, or any other defendant who pleads insanity. Consider the case of the “Unabomber” Ted Kaczynski, who was diagnosed as a paranoid schizophrenic and who sent letter bombs to a variety of people he perceived as enemies. And yet, Kaczynski was still declared competent to stand trial and convicted on 10 criminal counts.
Experts say that fewer than one percent of all felons claim insanity and, of those, only about 25% ultimately succeed in proving insanity. And remember, even if a defendant “wins” on the insanity defense, generally the reward is a long, long stay in a mental institution.