The Insanity of the Insanity Defense

Aron Levy, who kidnapped, murdered and dismembered 8-year old Leiby Kletzky in Brooklyn now faces a battery of defense-appointed experts in an attempt to plead NGRI (“Not Guilty by Reason of Insanity”). He has a history of “psychiatric disorders” and had been hearing voices, his lawyers claim.

The insanity defense in criminal trials is nothing new. The Babylonian Talmud had this to say 1800 years ago: “It is an ill thing to knock against a deaf-mute, an imbecile, or a minor. He that wounds them is culpable, but if they wound him they are not culpable."

But even the Talmudic rabbis – renowned for their intellectual acuity – would have been stymied by the modern version of the insanity defense.

To start with, no one seems to be able to define “insanity” unequivocally. Insanity in legalese is not the same as the colloquial expression (“he is nuts”) and is equally distinct from the way psychiatrists use the term (which they rarely do.)

Indeed, when it comes to the antiquated insanity defense, the legal profession is completely at odds with modern psychiatry.

The legal system applies three tests to determine whether an accused should be held not responsible for his criminal actions:

1. Can s/he tell right from wrong? Does s/he lack substantial capacity to “know and appreciate” the criminality or wrongfulness of her/his (mis)conduct (aka “diminished capacity”)?

2. Did s/he intend to act the way s/he did ("mens rea")?

3. Could s/he not control her/his behavior ("irresistible impulse")?

But, mental health scholars regard these “tests” as subjective, biased, and ludicrous. A "guilty but insane" verdict is a contradiction in terms, they insist. What matters is whether the defendant’s perception or understanding of reality (his “reality test”) is impaired and not only when he had committed the criminal act.

This rigorous criterion applies only to psychotics, such as Jared Lee Loughner, the Tucson shooter (whose reality test is subverted by bouts of psychosis, i.e., delusions). All others should be deemed both sane and culpable for all intents and purposes, insist most psychiatrists.

Moreover: the "perception and understanding of reality" can co-exist even with the severest forms of mental illness. Even when a criminal is clinically mentally-ill, as long as s/he maintains a perfect reality test, s/he should be held criminally responsible (Jeffrey Dahmer, who was denied the insanity defense, comes to mind).

Consider the cases of the Norway shooter, Anders Breivik or of Ted Kaczynski, the Unabomber: they both have coherent (albeit reprehensible) worldviews, a consistent internal logic, and rules of right and wrong (their own, personal, overriding ethical codes).

Breivik, for instance, is not delusional or otherwise psychotic. And, yet, his lawyer is seriously considering to use the insanity defense and, under the current, irredeemably flawed legal definition of insanity, may well get away with it!

This is not to say that a defendant’s mental state at the time he had committed the crime is irrelevant: he may have held mistaken (even delusional) beliefs or may have misread the situation, may have been misinformed, may have been under the influence of mind-altering drugs, may have lacked criminal intent, may have been unable to tell right from wrong, or to control his or her urges.

As the scholar Christopher Slobogin argues convincingly in his Virginia Law Review essay titled “An End to Insanity”: mental illness should play a part in and inform the traditional defenses already available in a criminal trial – but, shaky as it is, it should not stand on its own. Indeed, it can’t.

(An edited version was originally published in New-York Daily News)