"WE FIND the defendant, John W. Hinckley, not guilty by reason of insanity."
When a Washington, D.C., jury decided this summer that the man who had attempted to assassinate a President could not sufficiently distinguish right from wrong to be held legally accountable for his actions, most of us were shocked. While we may have known for some months in advance that Hinckley might "get off because of insanity," those bold-face headlines heralding the verdict nevertheless knotted our sense of justice deep inside. Since then, journalists, political cartoonists, legal experts, laymen and legislators have launched a barrage of criticism against the insanity plea in criminal proceedings. Many are frustrated to the point of fearing. "It's become a big game. You can get away with anything if you just pretend you're nuts." Implicit in the cynicism is a clear message: reform the use of the "not-guilty-by-reason-of-insanity" plea.
One proposed solution is the "guilty-but-mentally-ill" verdict already used in Michigan and Idaho, and under consideration in many other states, including Pennsylvania, Illinois and Colorado. By finding a defendant guilty but mentally ill, a jury declares the defendant, though mentally disturbed, satisfied the legal test for understanding the difference between right and wrong. The verdict sends a signal to the judge that mental treatment should be included in the criminal's sentence. Unlike legally insane offenders, those found guilty but mentally ill complete a mandatory incarceration period; they cannot be released upon recovery from their mental affliction.
Despite the seeming appeal of the guilty-but-mentally-ill verdict, the various state legislatures where the proposal is under consideration should reject it. The verdict, under pretense of preserving the venerable belief that an understanding of right and wrong is inherent in the concept of "guilt," invites jury abuse that would, in effect, lead to the conviction of innocent people.
IN A SITUATION involving a guilty-but-mentally-ill verdict, the jury would make a two-step determination. First, under the existing standard of ability to distinguish right from wrong, the jurors would decide if the defendant was legally sane at the time he committed the offense for which he is on trial. Only if the jury finds the defendant legally sane can it consider the second question of whether some mental deficiency short of insanity played a role in the commission of the crime. Because the jury uses the current insanity test, any defendant found not guilty by reason of insanity prior to the adoption of a guilty but-mentally-ill verdict would also be found legally insane after its adoption. The verdict, in effect, is only a sentencing recommendation to the judge, and is not designed to put more insane defendants behind bars John Hinckley, since deemed legally insane by the jury, could not have received a guilty-but-mentally-ill verdict had such a provision existed in Washington, D.C.
But this theoretical framework does not fit the real picture, and the guilty- but-mentally-ill verdict often compels a jury to compromise inveterate legal tenets. It effectively converts the distinct (though subjectively determined) insanity threshold into a large gray area of rights violations. Jurors reluctant to risk setting a legally insane man free face the irresistible temptation of reaching the "middle ground" of guilty but mentally ill. Instead of finding a defendant guilty but mentally ill only after resolving the question of sanity, jurors would likely agree to return such a verdict at the outset of deliberations, sparing themselves both the difficulty of determining sanity and the danger of returning a potentially dangerous criminal to their community. This new verdict enables jurors to convict defendants who otherwise would, and should, be declared insane. Guilty-but-mentally-ill would imprison those not legally accountable for a crime.
Other reforms, such as requiring offenders ruled insane to prove they have recovered from their illness before permitting their release (as opposed to the present system, which requires that the government prove the defendant is still insane and should remain in stitutionalized) would be far less unjust than the guilty but-mentally-ill verdict, and certainly less disingenuous. If the insanity plea has in deed become a big courtroom game, the guilty but mentally-ill verdict does not encourage a change in the rules Rather, it encourages cheating.