“Insanity is defined as a mental disorder of such severity as to render its victim incapable of managing his affairs or conforming to social standards.” (Insanity, pg. 1) It is used in court to state that the defendant was not aware of what he/she was doing at the time of the crime, due to mental illnesses. But insanity is a legal, not a medical, definition. There is a difference between mental illness and going insane. Many problems are raised by the existence of the insanity defense. For example, determining the patient’s true mental illness (whether they are faking or not), placement of the mentally ill after trial, the credibility of the psychological experts, the percentage of cases that are actually successful, and the usefulness of such a defense. The insanity defense is also seen as a legal loophole and a waste of money. Due to this, the insanity defense as a whole should be abolished in order to prevent the freed criminal from performing the same crime that put him on trial in the first place.

As stated above, one of the main problems concerning the insanity defense is being able to detect whether or not the criminal is truly insane. Over the years the insanity test has evolved from a primitive version to a more detailed version. “…The insanity defense was based on the rule established in the M’Naghten case which had been handed down the by British House of Lords in 1843. The Lords ruled, “It must be clearly proved that, at the time of the committing of the act, the party accused 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.” And this became the insanity test for more than a century.” (Mental Health Law and the US judicial system, pg 4) This rule is also known as the right/wrong test; it says that a person is basically insane if they are unable to distinguish between right and wrong as a result of some mental disability. This rule focuses on cognition, which alone is not enough to determine whether someone is mentally disabled. The M’Naghten rule remained the definition of the insanity defense up until 1954.

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When the Durham case arose the insanity test was changed. Judge David Baezelon stated that, “an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.” (Mental Health Law and the US Judicial System, pg 4) This was the foundation for the new insanity test. Baezelon worked with psychologists and psychiatrists in developing the new test and in 1962 the “Durham Rule” was founded. It was said to be better than the M’Naghten rule in that it included both cognition and volitional impairment. The M’Naghten rule didn’t include volitional impairment, which is an irresistible impulse while cognition impairment is not understanding the quality of the act. The federal courts eventually rejected the Durham rule because its definition was too broad. Alcoholics, compulsive gamblers and drug addicts had successfully used the defense to defeat a wide variety of crimes.

In 1972, the American Law Institute (a panel of legal experts) developed a new rule for insanity as part of the Model Penal Code. This rule says that a defendant is not responsible for criminal conduct where he/she, as a result of mental disease or defect, did not possess “substantial capacity either to appreciate the criminality of his conduct or to conform to the requirements of the law.” (UNABOM) .Since the rule was so vague and left a number of factors up to the jury to determine only half the states have adopted the Model Penal Code rule for insanity.

In 1984, congress passed the Comprehensive Crime Control Act. The Federal insanity defense now requires the defendant to prove, by “clear and convincing evidence,” that “at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.” It is generally viewed as a return to the “knowing right from wrong” standard.
There are two different outcomes that work for the criminal in cases like these. Either “not guilty by reason of insanity (NGRI)” or “diminished capacity.” These two defenses resemble each other but there exist important differences between them. “The most fundamental of those is that, while “reason of insanity” is a full defense to a crime –that is, pleading “reason of insanity” is the equivalent of pleading “not guilty” – “diminished capacity” is merely pleading to a lesser crime.” (UNABOM, pg. 1)
Each one of the rules stated above was comprised to determine whether the criminal is truly mentally ill. But unfortunately many criminals are institutionalized every year after being able to slip into a loophole, finding their way out of a prison sentence. “For instance, John Hinckley convinced a jury he was insane when he tried to assassinate President Ronald Reagan in 1981…Hinckley would have been found guilty. Instead, he was acquitted and committed to a mental hospital, which he has been allowed to leave on supervised visits with other patients to malls and bookstores.” (UF News) The insanity defense with its loopholes allows for people like this to escape the system where as he should have been tried for attempted manslaughter. Instead he used the diminished capacity approach, which says that the defendant is incapable of intending to cause a death, and therefore must have caused the death recklessly. And although it is agreed that he is mentally impaired and could be of harm to others, he is still allowed on outings and leads a less restricted life than that of a sane prisoner. Even while inside the “safe hospital setting” the criminal in question may have increased contact with others and a greater chance to unintentionally kill. “Of the 300 persons committed on NGRI verdicts 80 percent were released from mental hospitals by psychiatrists, and in several instances these mental patients went on to kill again.” (Jeffrey, 73) Mental hospitals do not cure criminals.

The credibility of the psychological experts must also be taken into consideration. Each different psychologist with a different concentration will interpret each situation in a different manner. Since the publication of the D.S.M. IV, psychologists are more likely to match up symptoms to the same cause. So in the case of the criminal abusing the insanity defense and faking the symptoms of a mental illness, it is more difficult to turn down a group of psychologists agreeing and easier for the criminal to get away with his crime.
The insanity defense is seen as a compromise on the part of society to the law. On one hand, society believes that criminals should be punished for their crimes; but on the other hand, society believes that people who are ill should receive treatment for their illness. Basically it says that the law should not punish defendants who are mentally incapable of controlling their conduct. So why should they even be tried? By doing this, they are wasting the time and money of the tax paying public and according to society it is not useful to punish someone who is mentally ill. Especially in a situation where the court must run tests in both situations to determine if the criminal is sane or insane. “On motion of the defendant, the court will appoint a psychiatrist selected by the state and pay him $100 for an examination and $100 each day of testimony.” (Goldstein, 137) This quote was taken from a book entitled, “The Insanity Defense” which was published in 1967. In those days $100 was a lot of money and it is unimaginable to think of what this process costs today, thirty-four years later. It also must be taken into consideration that when the insane are put into these institutions without a “damage award” the public is liable to pay for their stay at the institution. “If the damage award stands, the state will tap into it to pay for the care Williamson is receiving at the state hospital, a bill that is growing at the rate of $300 a day. If he remains hospitalized for several years, there may be no money left when he is discharged.” (Psychiatric news mainframe) In most situations there is no damage award and that money ends up being paid by the average person.
The insanity defense is not often used. Overall it is extremely difficult to convince juries that the defendant has a mental illness and couldn’t understand or control what they were doing. “Its always been looked at skeptically. Insanity is the last refuge of desperate defense attorneys.” (National Briefs, pg. 1) When the inconvincible juries are the ones making the decision, is it really worth all the time and money put into these trials when such a small number of them actually succeed?“According to one recent eight state study, the insanity defense was used in less than one percent of the cases in a representative sampling of cases before those states’ county courts.” (psych.org) Prosecutors will then have to prove each year that the criminal remains dangerous and mentally ill in order to keep him/her there. So basically, in the case of a faker, the insanity defense is only allowing for the waste of innocent taxpayer’s money in more ways than one. It costs more to put up a criminal in a state hospital prison than a regular prison because there are the added costs of drugs, doctors, guards etc. It also costs more in the sense that every year these tests have to be performed in order for the criminal to remain in the state hospital prison. Already some states have abolished the insanity defense. “Kansas followed Montana, Idaho and Utah to become the fourth state to legislatively abolish the insanity defense.” (Insanity Denied: Abolition of the Insanity Defense in Kansas, pg. 3).
The insanity defense has come a long way over the years to finally face potential abolishment today, almost two hundred years later. Looking back to the many times it was almost abolished it is realized that it might really be a useless waste of time and money. Once again insanity is a legal, not a medical, definition and it is hard to relate a scientific theory to factual laws. Many of the tests used to determine insanity are just that…theory. It is impossible to replicate what exactly was going on in the mind of the criminal when they were performing their crime to determine whether they could distinguish right from wrong or whether they were acting on impulse or not. Esteemed psychologists and psychiatrists can’t even define most of the individual terms used to define these rules. How would a jury comprised of common everyday people be able to make their decision after sitting in a courtroom listening to each side give persuading facts about how they are correct? Terms like insanity and mental illness have no scientific meaning, causing the relationship between insanity, mental illness and criminal law to be uncertain. As uncertain as the relationship between mental illness and criminal behavior. The insanity defense is impractical and ultimately allows harmful criminals back on the streets, therefore it should be abolished.