« Notable crime and sentencing reform talk in latest speech from AAG Lanny Breuer | Main | Georgia Supreme Court grant stay on protocol litigation, not MR issues, for Warren Hill »

July 24, 2012

Is an insanity defense a constitutional right?

The question in the title of this post is prompted by this effective Washington Post article, which is headlined, "Supreme Court is asked to find that insanity defense is a constitutional right." Here is how it gets started:

There’s no doubt John Joseph Delling knew what he was doing. His carefully planned 2007 crime spree lasted weeks, covered 6,500 miles and culminated in two people dead and one seriously wounded.

He had his reasons, too. Delling, then 21, had become “a type of Jesus,” he later explained, and the men he attacked, two of them former classmates he had not seen in years, were stealing his “energy.” An MRI of his brain would have revealed the damage the men had already caused, he told authorities. “I had to defend myself,” he said.

As the nation confronts another act of unfathomable madness, Delling’s story is one chapter in a distressing and violent genre: the loner who tries to impress a movie star by shooting the president; the mother who drowns her children to save them from damnation; the black-clad shooter who seems to step from the movie screen to kill.

But Delling’s case presents an intriguing legal question as well. He committed his crimes in Idaho, which is one of only four states — Kansas, Montana and Utah are the others — in which a defendant may not use insanity as a defense to criminal charges.

Delling’s lawyers are now at the Supreme Court, asking the justices to rule that the Constitution mandates that such a defense be available for those who, because of mental illness, are not responsible for the mayhem they create. “For centuries, the moral integrity of the criminal law has depended, in part, on the insanity defense,” Stanford law professor Jeffrey L. Fisher wrote in a petition on Delling’s behalf.

Punishment is traditionally justified on the basis of an individual consciously choosing evil over good, Fisher wrote. “Laws such as Idaho’s abandon that basic tenet,” he said. Fisher contends that Idaho’s law violates the Constitution’s guarantee of due process of law, as well as the Eighth Amendment’s prohibition of cruel and unusual punishment.

All states and the federal government once allowed the insanity defense. But that changed with the public outrage over John W. Hinckley Jr.’s acquittal for reasons of insanity in his assassination attempt on President Ronald Reagan in 1981. Many states and the federal government reacted by shifting the burden of proving insanity to the defense. But five states, including Nevada, abolished the insanity plea.

The highest courts in four of those states have upheld the laws. The Nevada Supreme Court, however, struck down that state’s statute, saying that the insanity defense recognizes a “fundamental principle” that people cannot be convicted of crimes when mental illness prevents them from knowing that their conduct is wrong. The other state supreme courts have found otherwise, and so far, the U.S. Supreme Court has not found reason to accept appeals in any of those rulings.

Despite its prominence in television crime dramas, the insanity defense is rarely invoked and is successful only about a quarter of the time, according to the most widely quoted study of its use. In its last examination of the issue in 2006, the court ruled that Arizona could narrow the insanity defense to exclude some defendants. The justices said they did not need to address the more fundamental question of whether an insanity defense is constitutionally mandated.

Especially in the wake of the Supreme Court's recent juvenile Eighth Amendment jurisprudence, I could readily imagine SCOTUS saying severe mental illness must be considered at trial OR sentencing in some way.  And, whatever the Justices might think on the merits, this issue surelt seems worthy of its consideration.

July 24, 2012 at 04:42 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Is an insanity defense a constitutional right?:


Severe mental illness makes people who commit crimes far more dangerous than other criminals. It should be an aggravating factor that warrants the death penalty more, if the purpose of the death penalty is public safety, and incapacitation. Those two are the sole mature purposes of the criminal law. REtribution comes fro mthe Bible and is unlawful. Rehab is a joke, as is restorative justice. These are fantasies devoid of any empirical evidence, past a certain rate of recidivism. They may be tried in first offenders with some success.

Because mental illness is not mentioned in the Constitution, any decision about it is just made up. It comes from the subjective personal preferences of the Supreme Court imposing its sicko lawyer Twilight Zone mentality on the nation at the point of a gun. Beyond the tyranny is the bad faith of the Supreme Court. Most decisions favor legal procedure to generate lawyer government make work jobs of no usefulness to the public. That is a form of theft of tax dollars.

The branches are definitely not equal. The Supreme Court is the dog of Congress fetching unpalatable answers to politically explosive questions the Congress does not want to address. If any Congress person criticizes the Court, they are personally destroyed because it is sacrosanct, as the family dog might be.

Under the protection of the Supreme Court, mentally ill people may not be forced into treatment unless they hurt themselves or others, and a hearing is held employing three lawyers. So the lawyer profession now totally dominates and hobbles psychiatry. Psychiatry can prevent these horrific episodes, the 2000 murders of innocent people by paranoid schizophrenics, and the 30,000 suicides. Thank the lawyer for each and every one of those unnecessary deaths. For every death, add 10 attempts with with serious injuries, and 100 less serious attempts. Thank the rent seeking lawyer for each of those totally unnecessary and highly preventable injuries, their health costs, and the devastation they cause on the families of both patient and victim.

Posted by: Supremacy Claus | Jul 24, 2012 7:28:50 AM

|| There’s no doubt John Joseph Delling knew what he was doing. His carefully planned 2007 crime spree lasted weeks, covered 6,500 miles and culminated in two people dead and one seriously wounded. ||

It's sad that deliberation and pre-meditation are defeated by mental illness in the determination of culpability.

It's sad that the weight of evidence effectively becomes irrelevant.

Posted by: Adamakis | Jul 24, 2012 10:23:12 AM

"Is an insanity defense a constitutional right?"

Actually, I think it is. But not on mental health grounds; on free speech grounds. A person should be able to present whatever defense they want including the fact they are crazy. Whether the law should recognize any less punishment for that fact (I think it shouldn't) is a different question.

Posted by: Daniel | Jul 24, 2012 12:35:49 PM

Free speech would not apply to the defense of a criminal case. Restriction of a party's conduct in court is content-neutral and would qualify as a reaonable time, place, and manner regulation.

The right to present a defense is grounded in the Fifth and Sixth Amendments and has traditionally recognized the ability of state law to define such matters as the elements of the offense, affirmative defenses, and evidentiary rules such as elements.

The Supreme Court has previously held that states have the ability to define the elements of the insanity defense and the burden of proof on such a defense (see Arizona v. Clark). The question is whether there is a core minimum insanity defense which (like proof beyond a reasonable doubt) is part of the framer's concept of due process. Given that M'Naughton occurred about 50 years after the framing, I am not sure what that historical core insanity defense from the time of the framing would be.

Posted by: TMM | Jul 24, 2012 3:01:37 PM

I don't think procedural due process is fully tied (cf. perhaps the 7A) to what was understood at the framing but the proper time for that in this case would be 1868 in a state case. I agree that this isn't a 1A case. Jeffrey L. Fisher is a pretty good guy to have on your side.

Posted by: Joe | Jul 24, 2012 8:52:44 PM

In 1909, the Washington State Legislature tried to ditch the insanity defense. In 1910, the Washington Supreme Court found the legislature had violated the state constitution's right to trial by jury. State v. Strasbeg, 60 Wash. 106 (1910). As a judicial factotum myself, it's fascinating to see how differently the court approached its work back in the day. Blackstone was cited.

Posted by: Laura | Jul 25, 2012 12:12:58 PM

Daniel: : "Whether the law should recognize any less punishment for that fact ["mental health"]
(* I think it shouldn't *) is a different question."

Here, Here

Posted by: Adamakis | Jul 25, 2012 3:59:27 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB