Picking Between Mad and Bad

By Bennett H. Beach

The Hinckley case steps up a debate over the insanity plea

Should John Hinckley spend the rest of his life in prison? Or was he so psychologically troubled when he shot President Reagan and three other men last March that society should not hold him accountable for his actions? That is the decision that will soon confront twelve jurors in Washington, D.C. If they accept the contention of Hinckley's lawyers that he was legally insane, the would-be assassin will be confined to a mental hospital until a judge concludes that he is no longer a threat to himself or fellow citizens. Then he may go scot free.

The insanity defense is rarely invoked and even more rarely successful. Among would-be assassins of Presidents, two have escaped a guilty verdict on the basis of it. One was Richard Lawrence, the house painter who fired at Andrew Jackson during a funeral service in the Capitol rotunda in 1835. The other was John Schrank, the saloonkeeper who shot Teddy Roosevelt in Milwaukee as the former President was en route to deliver a campaign speech in 1912.

Defendants have had little incentive to employ this defense, since the best hope it offered was usually a lifetime in a wretched mental hospital. In recent years, advances in drugs and psychotherapy, along with a trend toward returning mental patients to their communities, have reduced the average length of confinement. In New York State, the past 15 years have seen a sixfold increase in successful insanity pleas--from eight a year to 50. But the tendency to turn such patients loose has also led to a growing public perception that the streets are filling up with dangerous defendants who were found insane and then quickly released. In such a climate, legislators could soon begin to write the defense out of existence. To which many medical and legal scholars would say good riddance, since they increasingly doubt that there is any objective basis for distinguishing the truly mad from the genuinely bad.

The insanity defense rests on the fundamental notion that man has free will and can choose between good and evil. Conversely, if someone lacks free will because of a mental disorder, then he should not be punished for evil conduct. In colonial America, where more than 200 crimes were punishable by death, this defense often was the only way to spare someone from the gallows. Over the years, the standard became more cumbersome. The M'Naghten rule, devised by the English in 1843, declared that a defendant was not culpable if he "was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong."

Since 1962 most states, and the federal courts, have adopted variants of a model developed by the American Law Institute. Commonly referred to as the Brawner rule, it acquits a defendant who lacks "substantial capacity" either to know right from wrong or to conform to the law. This is the test that will be used in Hinckley's trial.

Critics of the plea believe that the standard is inconsistent and impossible to apply fairly. If mental defects are exculpatory, asks Dr. Abraham Halpern, director of psychiatry at United Hospital in Port Chester, N.Y., why shouldn't heredity, poverty and cultural deprivations also be? Others, like University of Chicago Law Professor Norval Morris, contend that jurors cannot make much sense of the tortured language in the M'Naghten and Brawner rules. "Even the so-called experts don't understand them," says Morris. Instead of acquitting defendants with mental problems, some scholars would prefer to have a judge convene a post-trial panel of medical experts to help him decide whether to order a prison sentence or psychiatric treatment.

Another alternative, tried in California but recently abolished by the legislature, is the doctrine of "diminished capacity." A defendant charged with first-degree murder, for example, could be convicted of a lesser offense like manslaughter, and thus receive a shorter prison term, if he was unable to "maturely and meaningfully reflect upon the gravity of his contemplated act."

Still another experiment is the "guilty but mentally ill" verdict, which was put to use in Illinois last week in the case of Drama Student Paul DeWit, 22, who stabbed his acting coach to death with a pair of scissors. DeWit must be confined at least 20 years, the minimum sentence for murder. Initially, he will go to a mental hospital, and if cured before his sentence has expired, he will be transferred to a prison to serve the remaining years.

Confronted with the confusing technicalities of the insanity defense, juries tend to fall back on down-to-earth considerations. Explains Justice Department Lawyer William Hardy: "They accept the defense where the defendant is guilty but it seems unfair to send him to prison. This is a way for the jury to compromise." They are least likely to accept an insanity plea when the defendant is extremely violent or dangerous. Example: the trial of a Californian nicknamed "the Vampire Killer," who disemboweled several of his six murder victims, drank their blood and ate their flesh. He was sentenced to death but died, presumably by his own hand, while on death row. In less dramatic cases, says Dr. Russell Monroe, chairman of the psychiatry department at the University of Maryland School of Medicine, jurors often ask themselves: "Would the defendant have committed the crime if a policeman had been standing right beside him?"

Despite such attitudes, observers believe that Hinckley Defense Attorney Vincent Fuller will parade his client's life and idiosyncracies before the jury in hopes of winning a shorter sentence, even if his insanity plea is rejected. Some feel, however, that Hinckley's wealthy background will count against him. Jurors, insists Washington Defense Attorney Lawrence Schwartz, will ask: "With all this opportunity, what right does he have to do this? " --By Bennett H. Beach. Reported by Evan Thomas/Washington

With reporting by Evan Thomas

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