53 years ago today, the US Supreme Court decided Leland v. Oregon, ruling that requiring a criminal defendant to bear the burden of proving insanity beyond a reasonable doubt does not violate the Constitution. That may not seem important or even complicated, but it is. Why? Because the Supreme Court has consistently ruled that the prosecution is obligated under our Constitution to establish all of the elements of a crime. Some might respond that the insanity defense is a defense, which means that it’s appropriate to impose upon the defendant the burden of proving it. And those people would be partially right. The insanity defense is a defense. But what happens if an element of the crime is the same as an element of the insanity defense? In other words, suppose a crime requires proof that the defendant, not only intentionally committed the act (for example, s/he intended to pull the trigger), but also that s/he intended the consequence (for example, that the victim die)? The insanity defense often hinges on proof that the defendant did not appreciate the nature or consequences of his/her actions (i.e., that s/he intended to pull the trigger but didn’t appreciate that, upon doing so, the victim would die). If an element of the crime is that the defendant intended the consequences, and an element of the insanity defense is that the defendant could not understand the consequences, the two burdens of proof coincide. Under those circumstances, is it constitutional or even fair to impose the burden of proof upon a criminal defendant, especially given how high the burden of proof was in Leland — beyond a reasonable doubt? The Court in Leland found no constitutional violation. But was the Court right?
Admittedly, this is a question that has confounded lawyers and jurists for decades. And, as the dissent noted in Leland, to expect rational outcomes when the law is so confusing is to “exact gifts of subtlety that not even judges, let alone juries, possess.”
Fortunately, the insanity defense is rarely invoked and thus the confusion such as it is, occurs infrequently. According to a 2012 study by Psychology Today, the insanity defense is raised in only 1% of all criminal cases, and is successful less than 25% of the time, meaning that very few defendants are actually acquitted on this basis. Nonetheless, because those who do prevail on the basis of legal insanity are able to avoid incarceration (at least among those in the general prison population), news of an acquittal on this basis receives disproportionate attention. Consider the case of Mark Hinckley, the man who attempted to assassinate President Reagan in 1981. Mr. Hinckley was acquitted on the basis of legal insanity and the ensuing media coverage was ubiquitous. The public’s appetite for the story was insatiable. And two years later, in response to public outcry, Congress passed the Insanity Defense Reform Act of 1984. Thereafter, 39 states changed their insanity defense laws. Four states abolished the insanity defense altogether. Plainly, elected representatives believe that they cannot afford to appear too lenient to those seeking to invoke insanity as a defense.
On the other side of the coin, if one accepts the precept that mental illness constitutes a medical condition that requires treatment, then punishing someone for doing something that he could not understand or control is just as questionable as punishing someone for a muscle spasm that resulted in another’s death.
So, what’s the right answer? Is it fair to impose upon a criminal defendant the burden of proving that s/he was unable to understand the nature and consequences of his/her actions, even though most murder statutes will also treat that proof as an element of the crime? Should we be concerned as a society that mental illness remains largely untreated due to widespread poverty and the lack of available mental health insurance coverage? To what extent does the lack of available mental health treatment contribute to violent crime? And is it fair to render it more difficult to establish legal insanity (which is the net effect of the Leland decision), particularly if those who genuinely suffer from a mental illness are unable to control it, either because it is not treatable or because it is treatable but they lack the resources to obtain the help and medication they require?