Crazy like a fox: Can insanity set you free?

James Holmes, who allegedly shot and killed 12 people and wounded 58 in an Aurora, Colorado, movie theater last summer, is in the news again. According to the New York Times, Judge William B. Sylvester had expected the defense to enter a plea of not guilty by reason of insanity and discussed the steps that such a defense would require, such as psychiatric examinations. (When the defense was unready to enter a plea, the judge entered a not guilty plea.) While it’s unclear exactly what the defense is planning, it’s certain that Holmes’ sanity will be a major part of the trial.

When a criminal defendant’s sanity is in question, we are often puzzled or even outraged. Certainly, no mentally sound person would shoot dozens of innocent people—to say nothing of the Jeffrey Dahmers of the world. Plus, it is understandably upsetting to imagine such people walking the streets because we as a society are unable to hold them responsible for their actions.

It’s important to define what we mean by “insane” and how that affects criminal proceedings. This complex issue is easily confused because the defendant’s mental state is important at several points in the proceedings.

Who are you calling “crazy”?

Most of us would agree that it’s “crazy” to commit mass murder, but the legal definition of insanity sets the bar higher than that. While the meaning of “insanity” varies from state to state, the trend is toward much less leniency since John Hinckley successfully used the insanity defense when he shot President Reagan. In Colorado, for example, an insane person is “a person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable.” (Colorado Bar Association)

Competent to stand trial?

Before we decide whether the defendant is guilty, we’ve got to get him into the courtroom.

A criminal defendant has the constitutional right to be present for his trial and to participate meaningfully in his defense—and this includes being able to understand the charges and the proceedings. See Dusky v. U.S., 362 U.S. 402 (1960).

Because Aurora shooter James Holmes has reportedly attempted suicide more than once while in jail awaiting trial and may have been a psychiatric patient in the years before the shooting, it is questionable whether he is currently competent. If he isn’t competent now, it doesn’t mean that he won’t have a trial or that he will go free. It means that—if he is found not competent to stand trial—the trial will wait until he is made competent. In extreme cases, antipsychotic medications can be forcibly administered. See Sell v. U.S., 539 U.S. 166 (2003).

Excused or justified?

Once we’ve cleared the competency hurdle, we get into what most people mean when they talk about criminal insanity. Insanity can either be a “negating defense” or an “affirmative defense.” A negating defense is: “There is no crime, because while I may have committed the act, it was not a crime because I was not mentally able to form the necessary intent.” An affirmative defense is: “There is a crime, and I committed it, but I can’t be held responsible because I could not understand what I was doing.”

To better understand these defenses, it’s helpful to define “crime.”

Mea culpa: What is a crime?

Very generally speaking, for an action to be a crime, two elements must be present: Mens rea and actus rea. The actor must have the necessary intent/mental state (mens rea) to commit the criminal act (actus rea). If the actor had the mental state but didn’t act, it’s not a crime. Likewise, if the actor didn’t have the necessary intent but still completed the action, it’s not a crime—or at least it’s not THAT crime.

Example: Say a jurisdiction has a statute that says that the crime of breaking and entering an auto is “intentionally or knowingly entering the automobile of another with the intent to commit a felony therein….” If your car is identical to mine and you’re parked next to me in the Kroger parking lot, I may absentmindedly get into your car before I realize my mistake (probably due to the lack of an eager rat terrier sorting through my grocery bag). I shake my head, laugh, get out of the car, and apologize to you as you approach. While I committed the act (I got into the car), I didn’t commit the crime, because I didn’t “intentionally or knowingly” get into the wrong car—and I certainly didn’t do it with “the intent to commit a felony therein.”

A hard sell

James Holmes is charged with—among other things—two counts of first degree murder for each person he killed. He is charged with, for example: “Intentional murder where the person after deliberation and with intent to cause the death of a person, does cause the death of that person or of another person.” Colo. Rev. Stat. § 18-3-102(1)(a).

The mens rea here is “after deliberation and with intent to cause the death of a person.” If Holmes were attempting a negating defense, he could argue, for example, that he was so delusional that he thought the theater-goers were video game characters and not people; therefore, he didn’t have the necessary mens rea, the “intent to cause the death of a person.” This is a reach, of course, and Holmes would be unlikely to prevail.

If Holmes were attempting an affirmative defense, he could argue that while he intended to shoot to kill, he can’t be held responsible because he was too mentally ill to understand that this was wrong. Again, no judge or jury is likely to accept this.

The insanity defense is hard to sell, particularly because the crimes in question are often heinous and the defendant is rarely a sympathetic character. Also, even if the defendant successfully mounts this defense, he’s still not set free.

Not so fast

A defendant who manages to convince the court that he is not guilty by reason of insanity is not set free to harm again. Rather, he is typically confined to a secured psychiatric hospital—at least until he can show that he is no longer sick. Then, he may be released into a halfway house or into the community with a long list of conditions. Surprisingly, this “sentence” often lasts longer than the prison sentence would have. While the conditions in the mental hospital may or may not be more pleasant than those in a maximum security prison, there’s little motivation to cry “insanity.”