A prospective comparison of four insanity defense standards
Department of Psychiatry, University of Pittsburgh School of Medicine, Western Psychiatric Institute and Clinic, PA 15213. American Journal of Psychiatry
(Impact Factor: 12.3).
Controversy about the formulation of the insanity defense has been intense, but little empirical work is available regarding how different standards affect court findings. The major aims of the present study were to determine if different standards for determining insanity produced different judgments and to provide a broad descriptive picture of those cases in which the standards appeared to make a difference.
Four forensic psychiatrists were asked to indicate whether they thought 164 defendants met any or all of four insanity tests: 1) the American Law Institute (ALI) cognitive criterion, 2) the ALI volitional criterion, 3) the APA test, and 4) the M'Naghten rule.
The four psychiatrists determined that 97.5% of the defendants met the ALI volitional criterion, 73.9% met the APA criterion, 70.3% met the M'Naghten rule, and 69.5% met the ALI cognitive criterion. Nearly two-thirds of the defendants met all four insanity tests, and 24.4% met only the ALI volitional test. Few defendants met cognitive tests without also meeting the ALI volitional test. Elimination of the volitional test for insanity reduced the rate of psychiatric recommendations of acquittal by 24.4%.
These findings highlight the fact that the primary logical division between volitional and cognitive standards appears to be powerful but that distinctions between types of cognitive standards are not terribly powerful. In addition, the variation among individual raters must be viewed as an important determinant of how any insanity standard is applied.
Available from: Stephanie Penney
- "While there is some research to suggest that, under certain conditions , the reliability of insanity opinions offered by different evaluators can reach satisfactory levels (e.g., Fukunaga, Pasewark, Hawkins, & Gudeman, 1981; Rogers, Cavanaugh, Seman, & Harris, 1984; Rogers, Seman, & Wasyliw, 1983), virtually no studies have examined the " accuracy " of criminal responsibility assessments vis-à-vis legal criteria operating in the jurisdiction being studied. Five U.S. studies examined the concordance between a clinician's opinion regarding criminal responsibility and the court's ultimate decision (Daniel & Harris, 1981; Fukunaga et al., 1981; Poythress, unpublished raw data; Rogers et al., 1984; Wettstein, Mulvey, & Rogers, 1991), finding high rates of concordance between clinical opinions and legal decisions (agreement rates ranged from 81 to 93%). However, it is arguable whether court decisions represent the ideal criterion by which to gauge the validity of criminal responsibility evaluations. "
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ABSTRACT: This paper provides a review of the legislative reforms and case law that have impacted the defense of Not Criminally Responsible on Account of Mental Disorder (NCRMD) in Canada over the past three decades. As in other jurisdictions internationally, we observe that legislative reforms of procedural, as opposed to substantive, aspects of the NCRMD defense have impacted the manner in which NCRMD criteria are applied in common practice. More people are being declared NCRMD in recent years, and there is greater heterogeneity in the offending and psychiatric profiles of these individuals, suggesting that NCRMD criteria are being applied more liberally over time. In light of the substantial growth of the forensic mental health system over the past two decades, witnessed both in Canada and abroad, we propose that the study of motivational influences underlying the offending behaviors of persons with serious mental illness (SMI) is necessary to begin disentangling symptom-based offending from violent and antisocial behaviors that may have other motives. This, in turn, can help to determine legal issues, better define the nature of each person's offending and treatment needs, and provide a more fine-grained analysis of the drivers behind the growth experienced by the forensic system. Copyright © 2013 John Wiley & Sons, Ltd.
Behavioral Sciences & the Law 07/2013; 31(4). DOI:10.1002/bsl.2067 · 0.96 Impact Factor
- "As discussed, a small but significant proportion of subjects are assessed as NCR on volitional grounds alone. Psychiatrists also report that they can in many cases clearly distinguish between cognitive and volitional impairments (Wettstein et al., 1991). And as mentioned, in experiments people with frontal lobe damage often exhibit both an awareness of the wrongness of their choices and an inability to stop themselves from making them. "
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ABSTRACT: Almost all of the world's legal systems recognize the "M'Naghten" exception to criminal responsibility: the inability to appreciate the wrongfulness of action. This exception rests on the assumption that punishment is morally justified only if the defendant was able to choose whether to do wrong. Jurists and jurisdictions differ, however, on whether to extend M'Naghten's logic to cases where the defendant understood the wrongfulness of an act but was incapable of resisting an impulse to commit it. In this article I ask whether contemporary neuroscience can help lawmakers to decide whether to adopt or retain this defense, known variously as the "irresistible impulse" defense or the "control" or "volitional" test for insanity. More specifically, I ask firstly, whether it is empirically true that a person can understand the wrongfulness of an act yet be powerless to refrain from committing it; and second (assuming an affirmative answer to the first), whether the law of criminal responsibility can practically accommodate this phenomenon? After canvassing the relevant neuroscientific literature, I conclude that the answer to the first question is "yes." After examining the varied treatment of the defense in the United States and other nations, I also give an affirmative answer to the second question, but only in limited circumstances. In short, the defense of irresistible impulse should be recognized, but only when it can be shown that the defendant experienced a total incapacity to control his or her conduct in the circumstances.
International Journal of Law and Psychiatry 03/2012; 35(2):99-103. DOI:10.1016/j.ijlp.2011.12.004 · 1.19 Impact Factor
Available from: repub.eur.nl
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ABSTRACT: People who live in society are bound together by laws based on duties and rights.
Even though primarily born out of acceptance and respect for one another, these
laws, part of an ethical system of communal life, are also utilitarian in their essence.
Though accepting the above postulates, people are at times the subject of feelings,
drives, and actions contrary to respectful interaction with others. Society has,
therefore, created criminal laws, codified through the centuries, with the purpose of
controlling the deviant and impulsive behavior of some of its members in order to
maintain, in as much as possible, societal homeostasis.
Ethical principles, such as beneficence and non-maleficence, especially in a
democratic society, are basic to legal systems whose purpose is to dispense justice
in its various courts of law, where victims and miscreants, represented by their
respective advocates, contend over guilt and exculpation. The majority of criminal
cases involve mentally competent persons, who maliciously do not conform to the
requirements of the law and, furthermore, often do not conform to basic moral
values. A small percentage of those who break the law suffer from a severe mental
disorder, which, if present at the time of a crime, may annul or greatly diminish their
mental capacity to appreciate the nature, quality and consequences of their criminal
behavior or their capacity to conform to the requirements of the law. These persons
are allowed by the law to enter an exculpatory plea and to attempt to prove at trial
that they were legally insane at the time of an alleged offense.
There is, in addition, a substantial cohort of persons who suffer from a severe
personality disorder for whom entering a plea of not guilty by reason of insanity in
United States courts at present is typically a futile exercise, even though their
behavior at the time of their alleged crime was bizarre, confused and irrational. The
futility of their plea stems from the practical reality that their disorder is not
recognized as a mental illness.They cannot take advantage of the insanity plea
because of the prevailing legal view that they cannot meet its threshold criterion.
Even if they were in a court that would allow them to surmount that hurdle, they
would still be subjected to exceptionally strict scrutiny.It is the argument of this
thesis that, in regard to individuals suffering from a severe personality disorder, in
the United States the criminal law operates if not from unfounded prejudice
certainly from a foundation that disregards current scientific knowledge.
The premise underlying this argument is that persons with a severe personality
disorder (many of whom are capable of only marginal functioning in daily life),
under severe stress, may at times undergo a personality disintegration that is
tantamount to a frank psychotic episode, which should make them eligible for an
insanity plea. However, United States courts, including the United States Supreme
Court, have held explicitly that criminal defendants have no due process right to
how the insanity defense is framed or worded, what sorts of conditions it may cover
or exclude, or even whether they may have the benefit of an insanity defense at
all—or any number of other exculpatory concepts. (See, e.g. Montana v. Egelhoff,
518 U.S. 37 (1996); Clark v. Arizona, 126 S. Ct. 2709 (2006)). Elementary fairness
suggests they ought to be allowed to assert their non-accountability in the context of
an insanity defense or any other defense. Of course, it is well known that offenders
at times attempt to malinger mental disorders, or to greatly exaggerate any existing
mental pathology. That is a risk that is run with any offender. However, it is better
to free ten guilty people than to convict one innocent one. It serves as the
justification for requiring, that is, an extraordinarily high standard of proof (beyond
a reasonable doubt) in criminal prosecutions. The argument of this thesis is that the
preclusion to plead insanity or the non-credibility of those rare personalitydisordered
offenders who are allowed to enter the plea, is based on socio-political
factors rather than psychological and psychiatric ones.
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