J. Bard “Incarceration of Individuals with Serious M ental Illness”

Re-arranging Deck Chairs on the Titanic:
Why the Incarceration of Individuals with Serious Mental Illness Violates Public
Health, Ethical, and Constitutional Principles and Therefore Cannot Be Made
Right by Piecemeal Changes to the Insanity Defense
By Jennifer S. Bard
Anyone who has spent any time in the criminal justice system - as a defense lawyer, as a district attorney,
or as a judge - knows that our treatment of criminal defendants with mental disabilities has been, forever, a
scandal. Such defendants receive substandard counsel, are treated poorly in prison, receive disparately
longer sentences, and are regularly coerced into confessing to crimes (many of which they did not commit)
... . We further know that the one question on which we obsessively focus - the scope and role of the insanity
1
defense - is virtually irrelevant to this entire conversation.
“On any given day, at least 284,000 schizophrenic and manic depressive individuals are incarcerated, and
547,800 are on probation... We have unfortunately come to accept incarceration and homelessness as part
2
of life for the most vulnerable population among us.”
“She knew exactly what she was doing, and she knew it was wrong,” said a juror, explaining why she
3
rejected Andrea Yates’ insanity defense.

Introduction
The decision by a Texas jury to find Andrea Pia Yates - the woman who drowned her five
children because she believed she was saving them from God’s judgment - guilty of murder,
rather than not guilty by reason of insanity, has unleashed a torrent of calls to revise the insanity
defense to avoid further such perceived injustices. In this Article, I will argue that the problem of
adjudicating mentally ill criminals is too large a societal issue to be resolved by merely refining
the insanity defense to include provisions for women suffering from post-partum depression who
1

Michael L. Perlin, “Life Is in Mirrors, Death Disappears”: Giving Life to Atkins, 33
N.M. L. Rev. 315, 315 (2003) [hereinafter Perlin, Mirrors].
2

The Impact of the Mentally Ill on the Criminal Justice System: Hearing Before the
House Judiciary Subcomm. on Crime, 106th Cong. (2000) (testimony of Congressman Ted
Strickland).
3

Assoc. Press, 4 Yates Jurors: Confession, Photos Key to Verdict, Wash. Post, Mar. 18,
2002, at A18, available at LEXIS, News Library, Wpost File [hereinafter AP, Yates Jurors]. As
of the publication of this article, the Texas First Court of Appeals in Houston has overturned
Andrea Yates’ conviction based on false testimony from a psychiatric expert for the prosecution.
Yates v. State, Nos. 01-02-00462-CR, 01-02-00463-CR, 2005 Tex. App. LEXIS 81 (Tex. App.
Jan. 6, 2005). The fact of the verdict is relevant to this article, whether or not the conviction is
eventually sustained on appeal.
1

J. Bard “Incarceration of Individuals with Serious M ental Illness”

kill their children. Instead, I propose that the mass closing of institutions for the mentally ill over
the past thirty years - without creating adequate outpatient mental health treatment - has resulted
in a new problem only tangentially related to the high-profile cases which have until now driven
the study of the insanity defense. This population of individuals who have difficulty conforming
their behavior to societal norms would previously have been committed to mental hospitals.
Now, they end up incarcerated as criminals. Without addressing, or at least considering, the lack
of available mental health care, laws concerning the criminal responsibility of the mentally ill
cannot be considered fair.
It is stating the obvious to say that the nation’s health care system is inadequate to meet the
needs of people with mental illness. This threatens the health of both people with mental illness
and people who may become victims of crime committed by the mentally ill. It is, therefore,
accurate to describe the current situation as a public health crisis. Doing so, however, raises the
question of what public health is. The World Health Organization (“WHO”) defines “health” as
“a state of complete physical, mental and social well-being and not merely the absence of
disease or infirmity.”4 Building on the WHO definition, the Institute of Medicine defines public
health as “what we, as a society, do collectively to assure the conditions for people to be
healthy.”5 I contend that assigning full criminal responsibility to people with diagnosable serious
mental illness substantially impairs the public’s health.
By not providing adequate mental health resources, we create conditions in which people with
mental illness find themselves in situations where, due to their illness, they have the opportunity
to commit criminal acts that are causally related to the impairment of their thought processes.
Further, I contend that when people with mental illness are convicted of crimes and placed in
ordinary prisons, the conditions under which they are confined constitute deliberate indifference
to their basic health care needs. I will further explain how the crowding, regimentation, and lack
of mental health services in prisons all contribute to making prison an unsuitable place for the
mentally ill. Third, I propose that by not addressing the issue of how to adjudicate mentally ill
people who commit crimes, society itself is sick, because it is acting against normative standards
of fairness in assessing responsibility and caring for the ill. Fourth, I argue that confinement in
regular prisons is inappropriate - i.e., harmful - to people with mental illness and may well
violate their Eighth Amendment right to be free of “cruel and unusual punishment.”6 Moreover,
confinement without treatment is against society’s interest, because a large number of prisoners

4

Constitution of the World Health Organization pmbl., opened for signature July 22,
1946, 62 Stat. 2679, 14 U.N.T.S. 185.
5

Inst. of Med., The Future of Public Health 19 (1988).

6

U.S. Const. amend. VIII.
2

J. Bard “Incarceration of Individuals with Serious M ental Illness”

are eventually released and returned to society.7 Finally, I contend that the presence of so many
people with mental illness in prison calls into question the ethical and moral basis for society’s
assigning criminal responsibility to people with mental illness.
In reviewing the reasons for the insanity defense, Professor Stephen Morse writes that “the moral
basis of the insanity defense is that there is no just punishment without desert and no desert
without responsibility.”8 He goes on to define responsibility as being “based on minimal
cognitive and volitional competence.”9 “Thus,” he concludes, “an actor who lacks such
competence is not responsible, does not deserve punishment, and cannot justly be punished.”10
Recent changes in society, which have resulted in a lack of health care for people whose thought
processes are impaired, only highlight what has always been true: There is a large, unexplored
area between individuals who are fully responsible for their actions and those who bear no
responsibility at all. The traditional view of the insanity defense, as Morse expresses, was that
once having satisfied the normative principle, it would be “unfair” to hold “some crazy 11

7

National Institute of Corrections, Data on Prison Populations (2004), at
http://www.nicic. org/downloads/other/ocjtp db prisons.aspx (last visited Mar. 2, 2005) (on file
with author) (According to Justice Department statistics, “630,000 inmates in state and federal
prisons are being released each year... . That is approximately 1,700 offenders released every
day, many of whom have no savings, are not entitled to unemployment benefits, have few
employment opportunities, and are dealing with a struggling economy.”) (citing Bureau of Just.
Stats, Federal Criminal Case Processing, 2000 with Trends 1982-2000 (2001), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/fccp00.pdf; Jeremy Travis et al., From Prison to Home:
The Dimensions and Consequences of Prisoner Reentry, Urban Inst., June 2001, available at
http://www.urban.org/UploadedPDF/from prison to home.pdf; The Sentencing Project, U.S.
Prison Populations--Trends and Implications (2003); Joan Petersilia, When Prisoners Return to
the Community: Political, Economic, and Social Consequences, 9 Sentencing & Corrs.: Issues
for the 21st Century 2000, at 1 (Nov. 2000), available at
http://www.ncjrs.org/pdffiles1/nij/184253.pdf).
8

Stephen J. Morse, Excusing the Crazy: The Insanity Defense Reconsidered, 58 S. Cal. L.
Rev. 779, 783 (1985). Written soon after the Hinckley verdict, this article by Professor Morse
offers a comprehensive and thoughtful view on the legal status of the insanity defense and its
moral underpinnings.
9

Id.

10

Id.

11

The use of the word “crazy” is Professor Morse’s. See id. at 780, n.4.
I use the word ‘crazy’ advisedly and with no lack of respect for either disordered persons
or the professionals who try to help them. It refers to behavior that is weird, loony, or
nuts; less colloquially, it is behavior that seems inexplicably irrational. I chose the word
3

J. Bard “Incarceration of Individuals with Serious M ental Illness”

persons responsible for their criminal behavior.”12 However, as Professor Morse recognizes,
although the standards for identifying which “crazy” people should be excused have changed
over time, “the moral perception has remained constant: At least some crazy persons should be
excused [of criminal responsibility].”13 This Article seeks to show how there is also a moral
principle that requires not just the excusing of “some crazy” people, but rather measured and
compassionate consideration of the varying levels of responsibility of all people with serious
mental illness. It is easy to set such a high standard for excusing behavior that almost no one
ever meets it. However, society is not absolved of moral responsibility by excusing people who
are the most severely impaired by mental illness, while treating all other mentally ill people
exactly like ordinary criminals. I suggest that the moral obligation to consider the whole range of
mental illness in assessing criminal responsibility co-exists with the moral obligation to provide
access to appropriate treatment and care for all people with mental illness.
While efforts to refine currently existing insanity defenses have a place, I argue that the insanity
defense was, and continues to be, concerned only with a very small portion of the mentally ill:
those who essentially lack all awareness of external reality. Most individuals affected by some
degree of mental illness are excluded from insanity defense consideration because the inquiry is
limited to the narrow issue of whether a person can be excused from all responsibility due to
mental illness.14 While I think that it is the right of each state to determine how it will assess
criminal responsibility, I also believe this determination must be made based on a full and open
societal review of its beliefs about mental illness and responsibility. I believe that the efforts
made to remedy or improve the insanity defense, without considering how mental illness might
diminish responsibility, even if it does not remove it, reflects an underlying belief that unless
mental illness results in a complete lack of awareness, it should not affect determinations of
criminal responsibility. Without open discussion about the effect of mental illness on the brain
and on our current beliefs about personal responsibility, it will not be possible to take any
meaningful measures to avoid unjust treatment of people with mental illness who commit
crimes.
Even the verdict of “guilty but mentally ill,” which, as I will discuss infra in Part VI.B, is often
‘crazy’ because I believe that it is the best generic term to describe the type of behavior
that leads to a diagnosis or label of mental disorder. At the same time, it avoids begging
questions about whether the crazy person was capable of behaving less crazily.
12

Id. at 781.

13

Id.

14

See Daniel J. Nusbaum, The Craziest Reform of Them All: A Critical Analysis of the
Constitutional Implications of “Abolishing” The Insanity Defense, 87 Cornell L. Rev. 1509,
1521-24 (2002) (noting that an individual can be insane but still possess the required intent to be
found guilty of a crime).
4

J. Bard “Incarceration of Individuals with Serious M ental Illness”

offered as a solution to an absolutist insanity defense because it recognizes the presence of
mental illness, but does not result in any difference in the terms of confinement or the
availability of mental health services. Prisons were not designed to house large numbers of the
mentally ill, and recent research shows that the cramped, regimented, and punitive atmospheres
of prisons exacerbate mental illness and result in inhumane suffering.15 As I will detail in this
Article, this misdirection of the mentally ill to prison violates standards of fairness and decency
in the context of the proportional punishment of those who break society’s laws. It also violates
all prisoners’ Eighth Amendment right to not be subject to “cruel and unusual punishment.”16
This is why I propose that we approach the problem of adjudicating mentally ill people who
violate society’s criminal laws as a public health problem rather than a criminal justice problem.
This would reduce the danger to society from mentally ill criminals by developing a populationbased strategy to address mental health needs both before and after a crime has been committed.
In order to do that, we must, as a society, reach a consensus on two things: How we want to
assign criminal responsibility, and what role mental illness should play in that assignment. In
looking for a public health solution to the problem of crimes committed by the mentally ill, I
fully recognize that a person not deterred by society’s laws from harming others is too dangerous
to move freely in society. Those people should be confined securely under humane terms until
they are no longer a danger. I also believe that mental illness alone does not absolve any person
of moral or legal responsibility for harm they have done to others. Rather, the lack of a system
for treating and, if necessary, confining people with mental illness results in an inappropriate
reliance on the prison system to protect society from individuals whose behavior is not restrained
by either inner inhibitions or fear of external punishment.17 By confining people with mental
illness in prisons, we diminish our moral commitment to the principles of fairness upon which
our legal system is based.
Andrea Yates’ conviction is an example of what is wrong with our current methods of

15

See Mark J. Heyrman, Mental Illness in Prisons and Jails, 7 U. Chi. L. Sch. Roundtable
113, 116 (2000) (describing the stressful environment of prisons and how it may trigger mental
illness).
16

U.S. Const. amend. VIII.

17

It is important to realize that incarcerating people with mental illness is a temporary
method of removing them from society. Because most people sentenced to prison are eventually
released, the failure to provide adequate mental health care in prison is likely to result in the
release of a person with at least the same, if not worse, illness. See, e.g., T. Howard Stone,
Therapeutic Implications of Incarceration for Persons with Severe Mental Disorders: Searching
for Rational Health Policy, 24 Am. J. Crim. L. 283, 292-93 (1997) (describing the practice of
jailing people with mental illness without charging them or charging them with misdemeanors in
order to get them off the street, await a hospital bed, or to obtain mental health treatment).
Worse, they are released into a society that lacks access to outpatient mental health care. Id.
5

J. Bard “Incarceration of Individuals with Serious M ental Illness”

determining the criminal responsibility of a person with mental illness.18 Deficits in available
care for people with severe mental illness contributed to her being able to kill her children, and
her awareness of what she was doing led to her being held criminally responsible despite
uncontested evidence of severe mental illness. The interest sparked by the Andrea Yates case
among both the general public and legal academics may be due to the fact that because she is a
white, educated, middle-class woman, she triggers a sense of self-identification among people
who usually feel they have nothing in common with most serial killers/mass murderers.
Whatever the reason, since the verdict, at least twenty law review articles19 have been published

18

Bill Hewitt et al., Life or Death: Does Andrea Yates, on Trial for Murder in Houston,
Deserve Mercy for Drowning Her Five Kids? Or Is She, as Prosecutors Argue, Fully
Responsible for the Crimes They Say She Had Contemplated for Months?, People, Mar. 4, 2002,
at 82, available at 2002 WLNR 7238607.
19

There are many articles discussing Yates, postpartum depression, and the insanity
defense. This long string of citations to law review articles about Andrea Yates is included in its
entirety to provide a visual image of their numbers. As discussed supra, I believe that the
disproportionate interest in her conviction stems from her being a person with whom legal
academics can identify. See, e.g., Susan Ayres, “Not a Story to Pass On”: Constructing Mothers
Who Kill, 15 Hastings Women’s L.J. 39 (2004) (arguing that our construction of motherhood
must be re-examined, and that the presumptions and foundations constructing motherhood must
be challenged and subverted); Sheri L. Bienstock, Mothers Who Kill Their Children and
Postpartum Psychosis, 32 Sw. U. L. Rev. 451, 497-99 (2003) (noting that the two options posed
to the Yates jurors - capital murder or a verdict of not guilty by reason of insanity - are
insufficient for a defendant with severe postpartum psychosis, and calling for another option to
address her guilt and her illness); Nicole B. Casarez, Examining the Evidence: Post-Verdict
Interviews and the Jury System, 25 Hastings Comm. & Ent. L.J. 499 (2003) (observing that
while jurors believed Andrea Yates was mentally ill at the time she murdered her children, jurors
believed Yates could distinguish between right and wrong, which resulted in the jurors’ rejection
of the insanity defense); Joe W. Dixon & Kim E. Dixon, Gender-Specific Clinical Syndromes
and Their Admissibility Under the Federal Rules of Evidence, 27 Am. J. Trial Advoc. 25 (2003)
(examining the use of syndrome evidence in context of requirement for scientific evidence);
Marie Galanti, The Andrea Yates Trial: What Is Wrong with This Picture?, 9 Cardozo Women’s
L.J. 345 (2003) (examining how the Yates case deconstructed a mother’s traditional role);
Theresa Glennon, Walking with Them: Advocating for Parents with Mental Illness in the Child
Welfare System, 12 Temp. Pol. & Civ. Rts. L. Rev. 273 (2003) (evaluating opportunities and
challenges presented by the application of the ADA on behalf of parents with mental illness);
Phyllis Goldfarb, Creating a New Tango: Re-Imagining Gender, 9 Cardozo Women’s L.J. 443
(2003) (examining and challenging the hierarchy as traditionally understood); Dora W. Klein,
Involuntary Treatment of the Mentally Ill: Autonomy is Asking the Wrong Question, 27 Vt. L.
Rev. 649 (2003) (suggesting that when deciding to allow involuntary treatment the proper
equation is whether no treatment is preferable to involuntary treatment); Jane Byeff Korn, Crazy
6

J. Bard “Incarceration of Individuals with Serious M ental Illness”

(Mental Illness Under the ADA), 36 U. Mich. J.L. Reform 585 (2003) (arguing that the current
state of the law affords little protection to persons with mental illness, despite the existence of
the ADA); Sharon Lamb, The Psychology of Condemnation: Underlying Emotions and Their
Symbolic Expression in Condemning and Shaming, 68 Brook. L. Rev. 929 (2003) (suggesting
that Russell “Rusty” Yates should have been held legally responsible for failing to recognize his
wife’s depression); Jessie Manchester, Beyond Accommodation: Reconstructing the Insanity
Defense to Provide an Adequate Remedy for Postpartum Psychotic Women, 93 J. Crim. L. &
Criminology 713, 751 (2003) (proposing a Postpartum Depression Research and Care Act to
create a plan for screening and managing postpartum depression in an effort to force American
society to recognize the condition); Christine Michalopoulos, Filling in the Holes of the Insanity
Defense: The Andrea Yates Case and the Need for a New Prong, 10 Va. J. Soc. Pol’y & L. 383,
407-08 (2003) (“The vast majority of women who suffer postpartum disorders, and many people
suffering from schizophrenia or delusional disorders, do not reach the level of mental
impairment of Andrea Yates... . [Thus,] establishing a new insanity prong based upon the Yates
case is unlikely to result in the acquittal of other women suffering from postpartum disorders”);
Shelby A.D. Moore, Understanding the Connection Between Domestic Violence, Crime, and
Poverty: How Welfare Reform May Keep Battered Women from Leaving Abusive
Relationships, 12 Tex. J. Women & L. 451 (2003) (addressing the interconnectedness between
battered women’s criminality, the present welfare system, and the subversive legacies left by the
criminal justice system’s treatment of women as defendants); Michelle Oberman, “Lady
Madonna, Children at Your Feet”: Tragedies at the Intersection of Motherhood, Mental Illness
and the Law, 10 Wm. & Mary J. Women & L. 33, 33 (2003) (exposing the inadequacy of
existing legal frameworks in understanding postpartum mental illness because the existing legal
frameworks fail to capture the essence of the condition); Michael L. Perlin, “She Breaks Just
Like a Little Girl”: Neonaticide, the Insanity Defense, and the Irrelevance of “Ordinary Common
Sense,” 10 Wm. & Mary J. Women & L. 1 (2003) (stating that in insanity defense cases jurors
err because they believe factually guilty people will escape punishment); Deborah W. Post,
Which Wave Are You? Comments on the Collected Essays from the Seminar “To Do Feminist
Legal Theory,” 9 Cardozo Women’s L.J. 471 (2003) (commenting that biological explanations
are an easy way out for a community to sidestep responsibility for dead children and infanticidal
mothers); Renata Salecl, The Real Crime: Psychoanalysis and Infanticide, 24 Cardozo L. Rev.
2467 (2003) (acknowledging the relationship between psychoanalysis and infanticide);
Christopher Slobogin, Rethinking Legally Relevant Mental Disorder, 29 Ohio N.U. L. Rev. 497
(2003) [hereinafter Slobogin, Rethinking] (arguing that laws which deprive people of liberty
should only be focused on mental illness to the extent they affect culpability, deterrability, or
competency and concluding that, in determining whether a person lacks culpability, is
undeterrable, or is incompetent, the law should focus on the content of the person’s thoughts);
Kim Taylor-Thompson, States of Mind/States of Development, 14 Stan. L. & Pol’y Rev. 143
(2003) (exploring the normative implications of applying adult conceptions of mens rea to
criminal conduct); Leti Volpp, On Culture, Difference, and Domestic Violence, 11 Am. U. J.
Gender Soc. Pol’y & L. 393 (2003) (asserting that cultural differences should play a role in
7

J. Bard “Incarceration of Individuals with Serious M ental Illness”

contending that her conviction is evidence of the ineffectiveness of the insanity defense as now
applied in the United States. I do not think it matters for the purposes of evaluating the insanity
defense that the widespread impression that her verdict was unjust may stem from the public’s
ability to sympathize with her.20 Moreover, I do not agree that adjusting the insanity defense to
include post-partum depression will solve what is really a failure of society to provide adequate
mental health care.21
The problem of violent crimes committed by people with mental illness cannot be addressed by
small adjustments to the current insanity defense laws. The introduction into open society of
large numbers of people with mental illness - who in the past probably would have been
institutionalized - has resulted in our nation’s prisons and jails becoming the primary provider of
mental health care. The country’s failure to provide adequate mental health treatment should be
seen as a massive failure of public health policy that has resulted in people with mental illness
being incarcerated in settings that violate fundamental fairness as well as their Eighth
Amendment right to receive adequate health care in prison. Moreover, I also believe that the
dissatisfaction with Yates’ conviction exposes a serious lack of societal consensus regarding
how mental illness affects behavior, and more importantly, how we should assign criminal
responsibility to people that we know experience some impairment in brain function.22
Until we come to a societal consensus, both on the nature of mental illness and the purpose of
criminal punishment, our efforts at making adjustments to the current insanity defense will be no
more successful than re-arranging deck chairs on a sinking ship.23 I propose, therefore, that the

determining the defendant’s state of mind).
20

The media portrayed her husband Rusty as a very religious, domineering man who
insisted that Yates continue to have babies even though she experienced severe postpartum
depression, and the family was living in the cramped quarters of, first, a camper, and then a bus.
See Hewitt, supra note 18; Suzanne O’Malley, Are You There Alone? The Unspeakable Crime
of Andrea Yates 28-30 (2004).
21

As the wife of a federal employee, Yates had what is arguably the best health insurance
available, but in reality, statements by her family indicate that she was prematurely discharged
from inpatient psychiatric facilities because she had reached the insurance company’s limit for
treatment. Gary Boulard, Forgotten Patients: The Mentally Ill, State Legislators Mag., Apr.
2000, available at http://www.ncsl.org/programs/pubs/400mntl. htm (last visited Mar. 2, 2005);
see also O’Malley, supra note 20, at 170.
22

See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (establishing prisoners’ right to health
care based on the Eighth Amendment).
23

I am not alone in coming to this conclusion. See Perlin, Mirrors, supra note 1, at 315
(writing about the Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002), which
8

J. Bard “Incarceration of Individuals with Serious M ental Illness”

problem of fairly adjudicating crimes committed by people with mental illness can best be
addressed by seeing it as a large-scale public health problem that can be solved, not by
reworking current versions of the insanity defense but by taking responsible action to make
mental health treatment available to everyone with a serious need for it. This approach cannot
work without a willingness by the states and the courts to act decisively in invoking and
enforcing their civil power to commit individuals with mental illness who are a danger to
society.
In making these statements I do not mean to imply that people with mental illness are more
likely than others to commit violent crimes. Indeed, although there are conflicting opinions as to
whether there is a statistically significant association between mental illness and violence,24 the
disproportionately large number of incarcerated mentally ill people seems to indicate that efforts
to distinguish between the mentally ill who do commit criminal acts from the general population
of people who commit crimes are not working.25
By citing to recent data showing the substantial number of seriously mentally ill people
incarcerated for determinate sentences, I will consider how historical and contemporary
approaches to the insanity defense are inadequate to address the disproportionate presence of
people with mental illness in America’s jails and prisons. I will also review the literature of the
public’s perception of the insanity defense and show how the public’s concerns about the
accuracy of diagnosis and the prospects for treatment have resulted in an increased narrowing of
the category of the mentally ill who are found not responsible for their conduct. I conclude by
arguing that unless government funds and mandates public health care measures such as
universal access to health care, and unless government furthers legislative efforts to craft a better
insanity defense, then we in the United States could rightly be charged with crimes against
humanity.
I. Mental Illness and Crime as a Public Health Issue
If we can see the problem of mental illness and crime as a public health issue rather than a moral
or jurisprudential issue, we can make great progress in developing an effective policy.
Advocating for the “Rightful Place for Public Health in American Law,” Professors Wendy E.
Parmet and Anthony Robbins assert that:
[A] population’s health is a critical part of law’s social context... . What remains absent
held that executing the mentally retarded violates the Eighth Amendment).
24

Edward P. Mulvey & Jess Fardella, Are the Mentally Ill Really Violent?, 33 Psychol.
Today 39 (Nov.-Dec. 2000).
25

Id. (arguing that there is a weak association between the mentally ill and violence; thus,
it is unclear what causes this association).
9

J. Bard “Incarceration of Individuals with Serious M ental Illness”

from a law student’s training are the perspectives and insights of public health. Public
health is a field that focuses upon the health of populations, and it confronts many issues
important to law students and lawyers.26
Presumably, one of society’s goals in designating some behavior as criminal is to reduce crime.
We are told that criminal laws prevent people from committing antisocial acts.27 However,
external laws do not always significantly impact internal motives to commit acts that society
considers crimes.28 My article questions the value of law as a deterrent; it is possible, however,
to agree that confinement takes people who break laws out of public circulation. Whether or not
confinement deters anyone else, it is effective in keeping this particular individual from harming
society.
Even if we see value in confining the mentally ill, we are left with the inescapable fact that
unless everyone with mental illness is confined as a preventive measure, confinement does
nothing to stop the mentally ill from committing crimes. Although a temporary solution might be
to ratchet up punishments to totalitarian levels, it is probably safe to assert that there has never
been a recorded society without crime or deviance, and that it will always be the case that for
some people, personal reasons for committing a crime cannot be overcome by external factors
such as the prospect of punishment.29 Prisoner research tells us that many of the individuals who

26

Wendy E. Parmet & Anthony Robbins, A Rightful Place for Public Health in American
Law, 30 J.L. Med. & Ethics 302 (2002). See generally Lawrence O. Gostin, Public Health Law
and Ethics: A Reader (2002), and Lawrence O. Gostin, Public Health Law: Power, Duty,
Restraint (2000) (discussing and analyzing how public health embraces many issues important to
lawyers, such as immunizations, partner notification, screening, personal privacy, etc.).
27

Deborah Prothrow-Stith, Strengthening the Collaboration Between Public Health and
Criminal Justice to Prevent Violence, 32 J.L. Med. & Ethics 82, 85 (2004) (stating that
“prevention efforts that are part of the criminal justice system are found in the passage of laws
and the deterrence resulting from their enforcement”).
28

Id. (arguing that “deterrence, the mainstay prevention strategy has limited prevention
capacity (particularly in the context of violence among acquaintances and family)”); see also
Tracey L. Meares et al., Updating the Study of Punishment, 56 Stan. L. Rev. 1171, 1186 (2004)
(concluding that “despite the oft-repeated public rhetoric connecting the increase in the
American imprisonment rate to deterrence, modern deterrence research has failed to find
consistent evidence of the deterrent effects of punishment”).
29

Cf., e.g., Benedict Carey, Payback Time: Why Revenge Tastes So Sweet, N.Y. Times,
July 27, 2004, at F1, available at 2004 WLNR 4791333 (reviewing research indicating that there
is a strong psychological drive for vengeance). One can extrapolate from this article that the
psychological urge for revenge could overpower the fear of punishment.
10

J. Bard “Incarceration of Individuals with Serious M ental Illness”

commit crimes, despite the obvious threat of punishment, are mentally ill.30 While mentally ill
people are by no means more likely to commit crime, it is the case that criminals are more likely
than the general population to be mentally ill.31
Faced with the fact that many crimes are committed by persons who are mentally ill,32 we must
now clarify what we consider to be mental illness. Scientific research over the last hundred years
has proved definitively that the locus of self-control and intentionality is in the brain.33 To the
30

Stone, supra note 17, at 287-92 (presenting research indicating the prevalence of mental
disorders among those individuals who commit crimes). See, e.g., Brian McCarthy, Mentally Ill
and Mentally Retarded Offenders in Corrections: A Report of a National Survey, in Nat’l Inst. of
Corrs., U.S. Dep’t of Just., Source Book on the Mentally Disordered Prisoner 14, 15 (1985); E.
Fuller Torrey et al., Criminalizing the Seriously Mentally Ill: The Abuse of Jails as Mental
Hospitals 13 (1992); Karen M. Abram & Linda A. Teplin, Co-Occurring Disorders Among
Mentally Ill Jail Detainees, 46 Am. Psychol. 1036, 1038 (1991); Joel A. Dvoskin & Henry J.
Steadman, Chronically Mentally Ill Inmates: The Wrong Concept for the Right Services, 12 Int’l
J.L. & Psychiatry 203, 207 (1989); Linda A. Teplin, The Prevalence of Severe Mental Disorders
Among Male Urban Jail Detainees: A Comparison with the Epidemiologic Catchment Area
Program, 80 Am. J. Pub. Health 663, 665-66 (1990).
31

See Stone, supra note 17, at 287 (stating that “the prevalence of severe mental disorders
is generally higher than the prevalence of severe mental disorders in the general, non-inmate
population”).
32

Id. at 287-92.

33

See Kenneth M. Heilman, Matter of Mind: A Neurologist’s View of Brain-Behavior
Relationships 202 (2002) (writing that “according to Wally Nauta, the frontal lobe networks fuse
biological drives and impulses with the knowledge of how to satisfy them. This fusion leads to
the development of goal-oriented behavior, or conation. The frontal lobes project to the motor
systems, enabling motivational states to initiate overt behavior.”). See also Howard S. Kirshner,
Behavioral Neurology: Practical Science of Mind and Brain 184 (2d ed. 2002), explaining that
[One scientist] ... divided the behavioral effects of frontal lobe injury into five categories:
sequencing; drive; executive control; “future memory” or planning for the future; self
awareness ... Executive control involves planning behavior toward perceived goals,
selecting the next response, anticipating future responses, and monitoring those behaviors
already carried out. Working memory, attention, sequencing, and anticipation of the
future are all aspects of this category of function. What we choose to attend to, out of the
vast complexity of incoming stimuli from the external world and from our own bodies,
and in what order, and with what response, summarizes the executive functions of the
frontal lobes. To a large extent, executive control is the central function associated with
the frontal lobes, and it integrates all of the other functions. Executive functions are
11

J. Bard “Incarceration of Individuals with Serious M ental Illness”

extent that mental illness can be described as brain disease, we can trace self-control aberrations
to the brain.34
Given the primacy of the brain, it is reasonable that brain changes will result in behavioral
changes. We have no trouble seeing the direct behavioral results of drinking alcohol or taking
drugs. Indeed, one commonly observed effect of alcohol and drugs is that they render an
individual less susceptible to either the desire to avoid harming others or the desire to avoid
punishment. This lack of susceptibility to deterrence means fear of future punishment will not
always reduce crime.35 Therefore, unless we are willing to confine all those immune to
deterrence or to turn society into an armed camp, we cannot reduce crime without reducing
mental illness.
And to reduce mental illness, adequate treatment must be widely available. As a recent article in
the American Journal of Public Health concluded, “inadequate treatment of serious mental

almost always disturbed in the presence of frontal lobe lesions, even when more basic
cognitive functions are intact.
Id. See also id. at 9 (presenting “Cricks’ ‘astonishing hypothesis’ that all of human
behavior, thinking, personality, aesthetics, and even ethics comes from the operations of
the human brain”).
34

Kirshner, supra note 33, at 3. “In the words of the Nobel Laureate Francis Crick (1994),
the codiscoverer with James Watson of the structure of DNA, the brain and its electrical and
chemical processes make up the mind: ‘You, your joys and your sorrows, your sense of personal
identity and free will, are in fact no more than the behavior of a vast assembly of nerve cells and
their associated molecules.’” Id. at 9. See also Patricia Smith Churchland, Brain-Wise: Studies in
Neurophilosophy 1 (2002) (explaining that “the self-control one thinks one has is anchored by
neural pathways and neurochemicals. The mind that we are assured can dominate over matter is
in fact certain brain patterns interacting with and interpreted by other brain patterns”); Robert L.
Taylor, Distinguishing Psychological from Organic Disorders: Screening for Psychological
Masquerade 16 (2d ed. 2000) (explaining that “impulse control is yet another important frontal
lobe activity. It is as though this part of the brain constrained primitive urges, ensuring their
translation into more acceptable social expressions. When impulse control is compromised,
personal habits deteriorate and inappropriate sexual and aggressive behaviors emerge without
regard for social impropriety”).
35

See, e.g., Minority Report (Twentieth Century Fox and Dreamworks Pictures 2002)
(portraying a futuristic society’s method of predicting and stopping criminal behavior before it
occurs, which, as in real life, unfortunately proves less than completely reliable).
12

J. Bard “Incarceration of Individuals with Serious M ental Illness”

illness is an enormous public health problem.”36 The Campaign for the Mind of America seeks
increases in available mental health resources, and the National Alliance for the Mentally Ill
(“NAMI”) reported that “one-third of community leaders nationwide identified the mental health
treatment system and services as one of the most overburdened community resources,” resulting
in “inadequate treatment and services for people with mental disorders.”37 How can this
inadequacy be remedied? First, we must recognize mental illness’ parity with so-called physical
illness.38 The current structuring of the United States’ health care system, which provides less
care for mental illness, makes intractable an effective, just, or humane resolution to the problem
of mentally ill offenders. Overlying the inequity between physical and mental illness treatment is
the reality that the United States provides no universal access to health care. The frayed
patchwork of private and public insurance plans leaves many Americans with no health care
whatsoever.39 Current legislative efforts to equalize mental and physical health benefits cannot
36

Philip S. Wang et. al., Adequacy of Treatment for Serious Mental Illness in the United
States, 92 Am. J. Pub. Health 92, 92 (2002) (reporting in their study that “only forty percent of
survey respondents with serious mental illness had received treatment in the previous year” and
of those, only “38.9% received care that could be considered at least minimally adequate”).
37

Press Release, Campaign for the Mind of America, Community Leaders Identify
Mental Health System as One of Most Overburdened Community Resources Finds Campaign for
Mind of America (Nov. 10, 2003), http://releases.usnewswire.com/GetRelease.asp?id= 11111102003 (last visited Mar. 2, 2005).
38

See Boulard, supra note 21 (referring to the Federal Mental Health Parity Act and
describing efforts at the state and federal level to achieve parity).
39

Robert J. Mills & Shailesh Bhandari, U.S. Census Bureau, Health Insurance Coverage
in the United States, 2002, at 1, 3 (2003), available at http://www.census.gov/prod/
2003pubs/p60-223.pdf (last visited Mar. 2, 2005).
The share of the population without health insurance rose in 2002, the second
consecutive annual increase. An estimated 15.2 percent of the population or 43.6 million people
were without health insurance coverage during the entire year in 2002, up from 14.6 percent in
2001, an increase of 2.4 million people.
. . . Although Medicaid insured 14.0 million people in poverty, 10.5 million other people
in poverty had no health insurance in 2002; the latter group represented 30.4 percent of
the poverty population, unchanged from 2001.
. . . Among the entire population 18 to 64 years old, workers were more likely to have
health insurance (82.0 percent) than nonworkers (74.3 percent). Among those in poverty,
workers were less likely to be covered (52.6 percent) than nonworkers (61.9 percent).
. . . Young adults (18 to 24 years old) were less likely than other age groups to have
health insurance coverage[- ]70.4 percent in 2002, compared with 82.3 percent of those
25 to 64 and, reflecting widespread medicare coverage, 99.2 percent of those 65 and
over.
13

J. Bard “Incarceration of Individuals with Serious M ental Illness”

succeed when there is no universal and underlying right or entitlement to any kind of health care.
In what strikes most people as unfair, under our current system the only people with a right to
health care are those imprisoned by the state.40 As a result, the mentally ill are guaranteed
treatment only when they have brought themselves to the attention of the criminal justice system
by committing a crime, or the civil justice system by exhibiting striking, public, dangerous

Id. Rather than a single piece of cloth blanketing the population, Americans are covered by many
different health care plans, including private insurance, Medicaid, Medicare, veteran’s benefits,
and private charity. As demonstrated by the U.S. Census Bureau statistics above, the patchwork
is frayed in that it leaves many people out in the cold.
40

Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). This case establishes prisoners’ right to
health care based on the Eighth Amendment requirements for conditions of incarceration by
holding that:
these elementary principles establish the government’s obligation to provide medical care
for those whom it is punishing by incarceration. An inmate must rely on prison
authorities to treat his medical needs; if the authorities fail to do so, those needs will not
be met. In the worst cases, such a failure may actually produce physical “torture or a
lingering death” ... In less serious cases, denial of medical care may result in pain and
suffering which no one suggests would serve any penological purpose.
Id. See, e.g., Heisler v. Kralik, 981 F. Supp. 830, 837 (S.D.N.Y. 1997) (recognizing that
the Supreme Court established that prison officials’ indifference to a prisoner’s need for
medical care could violate the Eighth Amendment). See also William H. Danne, Jr.,
Annotation, Prison Conditions as Amounting to Cruel and Unusual Punishment, 51
A.L.R.3d 111, 15 (2004) (discussing cases where “the Eighth Amendment was declared
applicable to the states through the due process clause of the Fourteenth Amendment ...
[and] the courts ... have increasiningly recognized that there is a definite nexus between
the right of a prisoner to essential medical care and his right to be spared from cruel and
unusual punishment”); Carl T. Drechsler, Annotation, Relief Under Federal Civil Rights
Acts to State Prisoners Complaining of Denial of Medical Care, 28 A.L.R. Fed. 279 5
(2004). Dreschler describes relief under the Federal Civil Rights Act to prisoners denied
medical care in prison:
Deprivations relating to inmate health, nourishment, and hygiene have commonly
been asserted to constitute cruel and unusual punishment with the most frequently
litigated area being that of medical care. In this area, numerous courts have come
to recognize, at least by implication, that cruel and unusual punishment can reside
in the denial of essential medical care to a prisoner. Particularly in actions
brought under the Civil Rights Act, 42 U.S.C.A. 1983.
Id.
14

J. Bard “Incarceration of Individuals with Serious M ental Illness”

behavior.41 At that point, society is forced to deal with these individuals because they then
present a threat to public safety. Such a threat is wholly different from the misery suffered by the
untreated mentally ill. As to the question of responsibility at the crime’s commission, should it
matter whether the individual suffers from a treatable brain disease or, in contrast, an equally
dangerous untreatable brain disorder?42

II. The Closing of Large State Mental Hospitals in the Last 30 Years Has Diverted a
Substantial Number of People with Mental Illness into the Prison System
The research cited in this Article will show that the widespread closing of state mental
institutions over the past thirty years has resulted in many people with mental illness being
diverted into the criminal justice system.43 In a process labeled “transinstitutionalization,” the
41

See U.S. Const. amend. VIII; see also Estelle, 429 U.S. at 104 (concluding that
deliberate indifference to serious medical needs of prisoners constitutes the “unnecessary and
wanton infliction of pain” prohibited by the Eighth Amendment).
42

It is beyond the scope of this article to do justice to the literature of mental illness
treatment. Suffice it to say that some mental illnesses are amenable to management through
pharmacology, just as diabetes can be managed with insulin, requiring little of the patient except
taking the medicine, while others require enormous management effort from the patient by
combining therapy and medication. See, e.g., Erica Goode, Chronic Depression Study Backs the
Pairing of Therapy and Drugs, N.Y. Times, May 18, 2000, at A23, available at 2000 WLNR
3206980 (describing a study demonstrating that combining therapy and medication is effective
in treating depression, a form of mental illness). Finally, there are serious brain diseases and
mental illnesses, such as Alzheimer’s disease and delusional disorder, of which it may be said
that medical science has not yet found a cure. Cf., e.g., Diagnostic and Statistical Manual of
Mental Disorders 154, 323 (4th ed. text rev.) (describing Alzheimer’s disease and delusional
disorder, respectively); Harold I. Kaplan & Benjamin J. Sadock, 1 Comprehensive Textbook of
Psychiatry/IV 1048 (6th. ed. 1995) (observing that some patients are “refractory to attempts to
reduce their delusional thinking”).
43

Paul F. Stavis, Why Prisons Are Brim-Full of the Mentally Ill: Is Their Incarceration a
Solution or a Sign of Failure?, 11 Geo. Mason U. Civ. Rts. L.J. 157, 157-58, 202 (2000)
(reviewing statistics showing the direct relationship between the closing of large mental
institutions during the last forty years and the corresponding flooding of the prison system with
the mentally ill, and concluding that the solution is to revisit the practice of involuntary
commitment in order to prevent people with mental illness from “rotting with their so-called
‘rights’ on”); see Ralph Slovenko, The Transinstitutionalization of the Mentally Ill, 29 Ohio
N.U. L. Rev. 641, 649 (2003) (offering a historical perspective on the treatment of the mentally
ill in the United States, and an accounting of how the civil rights movement of the 1970s caused
the massive release of the mentally ill from involuntary commitment, which has now led to
15

J. Bard “Incarceration of Individuals with Serious M ental Illness”

mentally ill who twenty years ago would have spent their entire lives in a hospital are now
shuffled from short-term stays in mental hospitals to incarceration in jails and prisons.44 A New
York Times headline in 1999 declared America’s “prisons brim with mentally ill.”45 The Cook
County and Los Angeles County jails are the largest providers of mental health in the country.46
Although it is difficult to get an accurate count of the number of defendants with a diagnosable
serious mental illness who are sent to prison, research indicates that 16% of defendants tried and
convicted for crimes and housed in state and local jails and prisons have serious mental illness;
other studies conclude that the number of defendants with mental illness in both the state and
federal prison systems could be as high as 283,000.47 A report issued by the Department of
Justice in 1999 concluded that 16% of inmates in state and federal jails and prisons, and
approximately 283,800 individuals have a serious mental illness.48 In 1998, NAMI held a
conference entitled the “Criminalization of the Mentally Ill,” at which it stated that “there are
approximately 70,000 persons with severe mental illnesses in public psychiatric hospitals, and
30% of them are forensic patients [hospitalized after committing a crime].”49 There are three

prisons and jails becoming the largest provider of mental health services).
44

Stavis, supra note 43, at 157, 157-58, 202. See also Slovenko, supra note 43, at 649
(giving a historical perspective on the treatment of the mentally ill in the United States and an
accounting of how the civil rights movement of the 1970s caused the massive release of the
mentally ill from involuntary commitment, thereby making prisons and jails the largest provider
of mental health services).
45

Stavis, supra note 43, at 157.

46

Human Rights Watch, Ill Equipped: U.S. Prisons and Offenders with Mental Illness 16
(2003); Stavis, supra note 43, at 159.
47

Stavis, supra note 43, at 159 (stating that the number of prisoners diagnosed with
mental illness is more startling considering that it includes none of the individuals found not
guilty by reason of insanity, since they are not in the criminal justice system, but rather in the
mental health system).
48

Paula M. Ditton, U.S. Dep’t of Just., Mental Health and Treatment of Inmates and
Probationers 1 (July 1999), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/mhtip. pdf (last
visited Jan. 7, 2005).
49

Nat’l Alliance for the Mentally Ill, Criminalization of Mental Illness 1 (2001), available
at http://www.nami.org/Content/ContentGroups/Policy/WhereWeStand/The Criminalization of
People with Mental Illness WHERE WE STAND.htm (last visited Mar. 2, 2005) [hereinafter
NAMI, Criminalization].
16

J. Bard “Incarceration of Individuals with Serious M ental Illness”

times as many people with severe mental illness in prison50 as there are in mental health
hospitals.51 NAMI asserts that these numbers show that mental illness is becoming criminalized
in the United States, and that prisons in the United States have already become de facto
psychiatric institutions.52 Another conclusion that mental health experts and legal scholars draw
from these statistics is that many of these inmates suffered from mental illness before being
incarcerated; thus, at the time they committed their crimes, they were mentally ill.53
Statistics indicate that not only is the number of incarcerated people with mental illness high, but

50

Human Rights Watch, supra note 46, at 1. Although estimates of the number of people
with serious mental illness incarcerated in the United States vary, studies indicate that more
people with mental illness are “treated in the nation’s three largest jails, Rikers Island (New
York City), the Cook County Jail (Chicago) and the Los Angeles County Jail” than in the public
hospitals of any of these three cities. See Torrey et al., supra note 30, at 48-49; Stavis, supra note
43, at 159 n.1 (citing E. F. Torrey, Jails and Prisons - America’s New Mental Hospitals, 85 J.
Pub. Health 1611, 1611-12 (1995)) (inferring from examples given that it is reasonable to
assume that those prisoners with identified serious mental illness were suffering from that illness
at the time they committed the act described as criminal).
51

Human Rights Watch, supra note 46, at 1.

52

NAMI, Criminalization, supra note 49. Cf. Kenneth P. Lindsey & Gordon L. Paul,
Involuntary Commitments to Public Mental Institutions: Issues Involving the Overrepresentation
of Blacks and Assessment of Relevant Functioning, 106 Psychol. Bull. 171, 171-72 (1989)
(contributing to the debate concerning involuntary commitments and focusing on the
overrepresentation of blacks in public mental health institutions); Hava B. Villaverde, Racism in
the Insanity Defense, 50 U. Miami L. Rev. 209, 212-18 (1995) (containing research that shows
that black defendants are significantly less likely to be successful in an insanity defense than are
white defendants despite the fact that they are disproportionately institutionalized in both
psychiatric hospitals and prisons).
53

Research increasingly shows that the sensory deprivation of the modern supermax
prison often worsens mental illness. See Nancy Friedman & Stuart Grassian, Effects of Sensory
Deprivation in Psychiatric Seclusion and Solitary Confinement 61 (1986); Terry A. Kupers, How
Are the Problems of Mental Illness Being Handled in the Prison System?, 17 Harv. Mental
Health Letter 8, 10 (2000). Cf. Heyrman, supra note 15, at 116 (describing the stressful
environment of prison and how it may trigger mental illness); Bryan B. Walton, Student Article,
The Eighth Amendment and Psychological Implications of Solitary Confinement, 21 Law. &
Psychol. Rev. 271, 273-77 (1997) (questioning whether solitary confinement is permissible
under the Eighth Amendment).
17

J. Bard “Incarceration of Individuals with Serious M ental Illness”

also that the mentally ill make up a disproportionate share of the incarcerated population.54 A
review of available data shows that although only “5 percent of the U.S. population suffers from
mental illness ... somewhere between 8 and 19 percent of prisoners have significant psychiatric
or functional disabilities and another 15 to 20 percent will require some form of psychiatric
intervention during their incarceration.”55 According to the American Psychiatric Association,
“as many as one in five prisoners were seriously mentally ill, with up to 5 percent actively
psychotic at any given moment.”56 In 2002, Jamie Fellner of Human Rights Watch (“HRW”)
conducted research on incarcerated persons in the United States criminal justice system.57 HRW
issued a report concluding that “persons with mental illness are disproportionately represented in
correctional institutions.”58 After reviewing the care received by mentally ill, HRW described the
inadequate care in prisons as a human rights violation.59

54

Human Rights Watch, supra note 46, at 17, 114. See also Heyrman, supra note 15.
Heyrman points out that the increased rate of incarceration for drug crimes has led to the
imprisonment of a disproportionate number of the mentally ill, writing that “persons with mental
illness often use alcohol and illegal drugs as self-medication to relieve the symptoms of their
illness” and that “when mental illness co-occurs with substance abuse, then persons with mental
illness ... have a higher rate of criminal behavior than the general population.” Id.
55

Human Rights Watch, supra note 46, at 17.

56

Id. (citing Introduction to American Psychiatric Association, Psychiatric Services in
Jails and Prisons, at xix. (2d ed. 2000).
57

See Human Rights Watch, supra note 46 (HRW usually monitors human rights
violations in places like Iraq, China, and Uganda).
58

Id. This report illustrates the problems concerning offenders with mental illness in U.S.
prisons. Furthermore, the report recommends that “the U.S. Congress promptly enact legislation
proposed by Senator Mike DeWine (R-Ohio) and Congressman Ted Strickland (D-Ohio). Id.
If enacted, the bill could catalyze significant reforms across the country in the way the criminal
justice system responds to people with mental illness. The bill authorizes grants to help
communities establish diversion programs (pre-booking, jail diversion, mental health courts) for
mentally ill offenders, treatment programs for mentally ill offenders who are incarcerated, and
transitional and discharge programs for mentally ill offenders who have completed their
sentences. The grants program would be administered by the Department of Justice in
consultation with the Department of Health and Human Services and could be used to help pay
for mental health treatment services in addition to program planning and administration,
education and training, and temporary housing.
Id. at 9.
59

See id. at 94. HRW reports that despite the development of standards by the National
Commission on Correctional Health Care (“NCCHC”), only 231 of the nation’s approximately
18

J. Bard “Incarceration of Individuals with Serious M ental Illness”

The presence of a substantial number of inmates with serious mental illness is no secret to
anyone interested in running or overseeing prisons.60 In a position statement, the National
Commission on Correctional Health Care declared that “today, many of those with mental
illnesses, who would have been cared for in institutional settings in the past, are sent to
correctional facilities around the country ... . In many instances, the ‘crime’ committed is a direct
result of a mental or psychiatric disorder.”61 Not only are there a disproportionate number of the
mentally ill in prisons and jails, but the facilities for treatment are widely viewed as inadequate.62
In fact, meeting prisoners’ mental health needs is considered one of the most serious and
expensive problems in providing correctional health care.63

III. Once Incarcerated, Prisoners have an Eighth Amendment Right to Adequate Mental
Health Treatment
Before reviewing the ethical and jurisprudential questions raised by holding the mentally ill

1,400 prisons have received NCCHC accreditation. Id. Accreditation requires adherence to
NCCHC guidelines and submission to monitoring by the organization. Id. at 94. HRW reports
that because “prison mental health services are focused primarily on managing mental health
crises and managing symptoms,” they either “have not taken advantage of the opportunity they
have to make significant long-term differences in the lives of their mentally ill prisoners” or “do
not even provide adequate basic mental health treatment.” Id. “Poor mental health treatment for
mentally ill prisoners is a national reality. The government is responsible for protecting basic
human rights, particularly those of the most vulnerable, and making wise use of limited criminal
justice resources. Public officials must make the necessary improvements.” Id. at 9.
60

The volume of material generated over the past five years reviewing the mental health
needs of the imprisoned is vast. See generally Comm. to Study the Needs of Persons with Mental
Illness Who are Incarcerated, Final Report, 120th Legislature (Me. 2001),
http://www.state.me.us/legis/opla/incarrept.PDF (last visited Mar. 2, 2005); Richard Lamb &
Linda Weinberger, Persons With Severe Mental Illness in Jails and Prisons: A Review, 49
Psychiatric Services 483, 483-92 (1998); U.S. Dep’t of Just., Nat’l Inst. of Corrs. Info. Ctr.,
Provision of Mental Health Care in Prisons (2001).
61

Nat’l Comm’n on Corr. Health Care, Mental Health Services in Correctional Settings,
at http://www.ncchc.org/resources/statements/mentalhealth.html (last visited Mar. 2, 2005).
62

See Human Rights Watch, supra note 46, at 94-125.

63

See generally Ditton, supra note 48 (showing that a statistically significant number of
prison inmates suffer from mental illness, presenting difficult and costly problems for the
corrections system).
19

J. Bard “Incarceration of Individuals with Serious M ental Illness”

responsible for their criminal behavior, it is important to understand that the Supreme Court in
Estelle v. Gamble held that the Eighth Amendment prohibition of “cruel and unusual
punishment”64 requires that neither the states nor the federal government can be deliberately
indifferent to prisoners’ health care needs.65 Specifically, the Court in Estelle reasoned that by
taking away an individual’s liberty, the state assumed the responsibility to meet its prisoner’s
needs, including medical care.66 While the Supreme Court has not held explicitly that the right to
medical care includes the right to mental health care, the current presumption, supported by the
Fourth Circuit’s opinion in Bowring v. Godwin,67 supports the belief that psychological or
psychiatric treatment is included under the definition of medical care. Therefore, no matter what
legal process results in their being imprisoned, all prisoners have a limited right to mental health
treatment; this is not a special privilege that needs to be extended by statute.68
Whatever our final decision on responsibility, we have a duty to treat all mentally ill persons
with humanity and respect. Although the existence of a constitutional right to basic health care in
prison allows organizations like HRW to make claims against the prison system for inadequate
mental illness care,69 the argument can be made that mental health care is more readily available
in prison than in the free world.
Mental health’s great event of the last century was the closing of most psychiatric hospitals, and
the release of thousands of patients.70 Although seen at the time as a civil rights victory, upon

64

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. Const. amend. VIII.
65

Estelle v. Gamble, 429 U.S. 97, 104 (1976).

66

Id. at 103-05.

67

Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir. 1977) (noting there is “no underlying
distinction between the right to medical care for physical ills and its psychological or psychiatric
counterpart”). See James R.P. Ogloff et al., Mental Health Services in Jails and Prisons: Legal,
Clinical and Policy Issues, 18 Law & Psychol. Rev. 109, 119-20 (citing Bowring, 551 F.2d at
47).
68

See infra Part VI.B for a discussion of the guilty but mentally ill verdict. I argue that the
verdict adds nothing to the rights that prisoners with mental health already enjoy, regardless of
the verdict’s classification.
69

See Human Rights Watch, supra note 46.

70

See Stavis, supra note 43, at 158; One Flew Over the Cuckoo’s Nest (United Artists
1975). Without defending the de-institutionalization portrayed so vividly in Cuckoo’s Nest, there
was no reason to think closing mental hospitals would make serious mental illness go away any
20

J. Bard “Incarceration of Individuals with Serious M ental Illness”

reflection, those severely mentally ill patients were not cured by de-institutionalization.71
Instead, they began living in public parks and bus stations and came to be known by a new name,
the “visible homeless.”72 Instead of getting care from the network of community mental health
clinics, which were supposed to be created to support the newly de-institutionalized, most
patients found themselves set adrift into the world with no means to obtain the medical care and
prescription medications necessary to function.73 As a result, in some large states, the prison
system is in fact the largest provider of mental health care in the state.74 A graph prepared by
NAMI shows an almost perfect inverse relationship between the number of people committed to
mental institutions in the early 1960s and the number of people suffering from a mental illness
now in prison.75 As is the case with all prison health issues, inmates suffering from mental illness
in prison usually will suffer from mental illness outside of prison.76 It is irrational to stop
treatment - as we do - at the gates of the prison if our goal is to reduce crime.

more than closing cancer wards could make cancer go away. Id. Mental illness, like cancer, can
and should be treated in the least restrictive environments. However, “least restrictive” is not
synonymous with “providing no treatment at all.” See id. In the author’s opinion, it is especially
tragic that at the same time science has developed drugs to restore lucidity to many of the
hopelessly insane, public policy has decreed it unimportant to make these drugs available to all
who need them.
71

LeRoy L. Kondo, Advocacy of the Establishment of Mental Health Specialty Courts in
the Provision of Therapeutic Justice for Mentally Ill Offenders, 28 Am. J. Crim. L. 255, 258 n.10
(2001).
72

Id. at 269.
During the 1980s, the number of homeless citizens needing food, shelter, and clothing grew
rapidly, with a large percentage of them suffering from mental disorders. The American
Psychiatric Association’s Task Force on the Homeless Mentally Ill reported that the increase in
homeless mentally disordered populations was caused by societal failures in implementing
deinstitutionalization community-based substitutes. Current estimates are that approximately 40
[to] 50% of the homeless are seriously mentally ill, with half suffering from treatable
schizophrenia.
Id. See generally Christopher Jencks, The Homeless (1994) (explaining the “visible homeless”
phenomenon).
73

Kondo, supra note 71, at 269-70.

74

Id. at 256-59.

75

Ron Honberg, Presentation at the Maine Conference on Jail Diversion, Sept. 28, 2004
(on file with author).
76

Human Rights Watch, supra note 46, at 94.
21

J. Bard “Incarceration of Individuals with Serious M ental Illness”

IV. Society’s Perception of How Mental Illness Affects Behavior Is the Critical Factor in
Assigning Criminal Responsibility to People with Mental Illness
A. What Are Society’s Underlying Beliefs About Mental Illness?
In order to address the role mental illness plays in criminal behavior and to address society’s
understanding of that role, it is necessary to have a unified theory of mental illness and an
understanding of what effect this theory has on criminal responsibility. Therefore, we need to
identify society’s underlying beliefs about responsibility, punishment, and mental illness. If
mental health is viewed, from a medical perspective, as existing along a continuum of severity,
then the law’s current method of dividing the accused into categories of “sane” and “insane”
makes no more sense than dividing the general population into two distinct categories, such as
the completely physically healthy and the completely physically sick. The law already
recognizes degrees of responsibility. Young children, for example, are found to lack the mature
thought processes necessary to take responsibility for their actions.77 The Supreme Court
recently found that it is unconstitutional to execute the mentally retarded because of their
impaired ability to reason, judge, and control their impulses.78 This finding further demonstrates
the law’s acceptance that criminal responsibility is affected by the status of an individual’s
brain.79 The difficulty, however, is that in the case of the mentally ill, there is widespread lack of
understanding and mistrust of how much brain or thought impairment is sufficient to excuse
serious criminal behavior.80

77

See Wayne R. LaFave & Austin W. Scott, Jr., Criminal Procedure 4.11(a) (student ed.
1986) (explaining the common-law defense of infancy).
78

Atkins v. Virginia, 536 U.S. 304, 306, 320-21 (2002); see also Atkins v. Virginia, 581
S.E.2d 514, 515 (Va. 2003). Much of the writing about the legal definition of mental illness can
be found in articles reviewing the constitutional limitations on executing the insane or the
mentally retarded. See, e.g., Timothy S. Hall, Legal Fictions and Moral Reasoning: Capital
Punishment and the Mentally Retarded Defendant After Penry v. Johnson, 35 Akron L. Rev. 327,
337-51 (2002).
79

See Atkins, 536 U.S. at 306, 320-21 (discussing, inter alia, how “cognitive and
behavioral impairments” render mentally retarded defendants less culpable).
80

Id. at 317-18; see also Michael L. Perlin, Unpacking the Myths: The Symbolism
Mythology of Insanity Defense Jurisprudence, 40 Case W. Res. L. Rev. 599, 727-29 (1990)
[hereinafter Perlin, Unpacking] (observing that courts, including the United States Supreme
Court, have been reluctant to view mental illness as fully exculpatory).
22

J. Bard “Incarceration of Individuals with Serious M ental Illness”

In his novel Reversible Errors, Scott Turow accurately describes the current state of legal
insanity with his portrayal of a lawyer’s initial assessment of a client on death row for murder:
Looking at Rommy’s eyes zag about like frenzied bugs near a light, Arthur held little
doubt why his prior lawyers had focused on a psychiatric defense. As people commonly
used the word “crazy,” Rommy Gandolph without question was. Yet not crazy enough.
Sociopathic. Borderline personality disorder, maybe even flat-out schizoid. But not
thoroughly lost in the wilderness, not so entirely without a compass that he did not know
wrong from right, which was what the law required for a defense.81
Much of what is wrong with the public’s and legal community’s perception of mental illness is
encapsulated in this paragraph. Psychiatrists and psychologists categorize mental illness by using
terms that others fail to understand, a failure that becomes clear from reading Turow’s work.
Mental health professionals use the term “mental illness” to describe a wide range of observable
behaviors that interfere with an individual’s daily activities.82 Part of the problem with
developing a fair method of adjudicating the mentally ill who have committed criminal acts is
society’s lack of confidence in the medical diagnosis of mental illness.83 To the public, the
mental health profession seems to describe any deviation from the norm as “mental illness.”84
Thus, mental health professionals give the public, and most lawyers, the impression that they do
not differentiate how specific diagnoses can affect the behavior of a particular individual.85
The brief review of literature on mental illness in this section of this article shows that
researchers and doctors view the diagnosis of mental illness as a separate issue from the effect
that the illness has on an individual’s life. Thus, the mere diagnosis of a mental illness is not a
basis for determining criminal responsibility. Moreover, it is not yet possible to predict with any
degree of certainty the dangerousness of an individual with a specific mental illness based on the

81

Scott Turow, Reversible Errors 13 (1st ed. 2002).

82

See Judith A. Northrup, Comment, Guilty But Mentally Ill: Broadening the Scope of
Criminal Responsibility, 44 Ohio St. L.J. 797, 815, 815 n.221 (1983) (writing that “mental
illness is defined as a ‘substantial disorder of thought processes or mood which significantly
impairs judgment, behavior, capacity to recognize reality, or ability to cope with ordinary
demands of life,’” citing Joseph D. Amarilio, Comment, Insanity - Guilty But Mentally Ill Diminished Capacity: An Aggregate Approach to Madness, 12 J. Marshall J. Prac. & Proc. 351,
375 (1979)).
83

Michael L. Perlin, The Jurisprudence of the Insanity Defense 148-51 (1994)
[hereinafter Perlin, Jurisprudence].
84

Id.

85

See id. at 148-51, 196-97.
23

J. Bard “Incarceration of Individuals with Serious M ental Illness”

behavior of a general population with the same diagnosis.86 This lack of understanding about the
individual’s condition and symptoms is recognized by the law, which insists that the mere
diagnosis of a mental illness is not sufficient to disprove responsibility.87 Thus, whether Scott
Turow’s character Rommy Gandolph is “sociopathic” or “flat-out schizoid” is not sufficient to
determine his level of responsibility under the law.88
The process of labeling a person as mentally ill and of diagnosing the nature of his impairment is
essentially an observation of how the illness affects the individual. A psychologist compares an
individual’s thought process to that of someone with competent social interactions.89 Therefore,
a diagnosis of mental illness means that the diagnosed individual interacts differently with the
world than an individual who is not diagnosed as mentally ill.90 Any impairment of what are
viewed as normal thought processes or impulse control will, by definition, affect behavior.91 It
should be no surprise that if the public - including lawyers and judges - does not view mental
illness as a continuum of impairment, like physical illness, then it will be dissatisfied by
psychiatry’s inability to make definitive statements about who is, and who is not, responsible for

86

Grant H. Morris, Defining Dangerousness: Risking a Dangerous Definition, 10 J.
Contemp. Legal Issues 61, 91-92 (1999). Morris explains that:
Using group data to predict individual dangerousness presents other problems. Merely
because a group can be identified collectively as dangerous does not mean that a specific
individual within the group is dangerous. Actuarial tables tell us attributes of the group,
but they obscure or trivialize the person’s individuality. If all the people in the United
States are at a one percent risk of violence, a test that is 100 percent accurate will identify
all the people in the United States as within the group. All of us will be “correctly
identified.” However, such a finding does not mean that each individual within the group
presents a one percent risk of violence. Some may be nearer to zero percent, others may
be at ten, or fifty, or ninety-nine percent.
Id.
87

Turow, supra note 81, at 13.

88

Even though Rommy was mentally ill, this was not severe enough to raise the insanity
defense, because he was “not thoroughly lost in the wilderness ... which was what the law
required for a defense.” Id.
89

See Bruce J. Winick, The Side Effects of Incompetency Labeling and the Implications
for Mental Health Law, 1 Psych. Pub. Pol. & L. 6, 9-10 (Mar. 1995).
90

Id.

91

Id.
24

J. Bard “Incarceration of Individuals with Serious M ental Illness”

their own behavior.92 The public’s lack of comprehension of mental illness as a continuum is
readily apparent as compared to the universal appreciation for gradations in physical illness.
Medical diagnosis reflects the existence of a harmful abnormality in the body’s functioning, but
it does not describe how that abnormality affects an individual’s life. Although the doctor knows
the aggregate history of people with similar signs and symptoms, nothing is known about the
future clinical course of any particular individual. More importantly, every lawyer, judge, juror,
or family member knows that to diagnose the presence of a disease is not sufficient to determine
whether it can be cured or even managed. Finally, there is no correlation between the presence or
absence of illness and the availability of an effective treatment. Just because someone cannot be
treated does not mean that they are not ill. Whatever standard the law uses to decide whether a
person is “crazy enough” to avoid responsibility cannot begin to encompass the entire reality of
mental illness. Although it is important to have a method of dealing with the completely deluded,
or those who do “not know wrong from right,” such a method does little to address the issue that
many people suffering from mental illness do not exhibit a total loss of contact with reality.
B. What Do We Believe About How Mental Illness Affects Human Behavior?
In order to understand how society views mental illness as a factor in determining criminal
responsibility, it is necessary to consider the topic of deviance. Crime is traditionally described
by sociologists as a form of abnormal behavior, with individual criminals being labeled
deviants.93 Mental illness is similarly defined as a form of deviance because it represents a
divergence from the majority of society. University of Pennsylvania sociologist Paul Root
Wolpe argues against defining the mentally ill as deviant and thus inclined to break the law.94
Labeling the mentally ill deviant, he contends, means that we reject the possibility of individual
differences.95 Deviant behavior is not necessarily caused by disease.96 Wolpe asserts that
deviance is defined differently at different times, but at all times denotes a person set apart from
society.97 For example, in Nazi Germany, groups such as Jews, dwarves and gypsies were
labeled “deviant” and thus prone to crime, but such a label appears worse than absurd to us

92

Perlin, Jurisprudence, supra note 83, at 252-62.

93

Paul Root Wolpe, Explaining Social Deviance (The Teaching Company 1994).

94

Id.

95

Id.

96

Id.

97

Id.
25

J. Bard “Incarceration of Individuals with Serious M ental Illness”

today.98 Similarly, the argument that an expanded insanity defense attempts to make mental
illness an excuse for criminal liability is actually moving down a slippery slope towards defining
crime as the product of mental illness. This fear is strengthened by the degree to which a crime
seems incomprehensible - like Yates drowning her five children in the bathtub or Jeffrey
Dahmer eating his victims. The argument implies that we can all imagine ourselves committing a
crime for financial gain if we were in dire need or committing murder as a result of deeply
personal passion. However, when the crimes appear senseless and reflective of moral depravity,
we label the crimes a result of mental illness.
One cuts this Gordian knot with the liberating realization that it is not necessary to make this
distinction in order to have a rational system of consequences for breaking important societal
norms. Although many people who commit crimes do suffer from mental illness that makes
them too dangerous to live freely, this does not mean that they deserve punishment. Both
impaired judgment and reduced aggressive impulse control could be potential symptoms of
severe mental illness.99 We face the problem that language philosophers such as Ludwig

98

See Winick, supra note 89, at 10.
Labeling individuals as deviant[- ]such as by characterizing them as mentally ill[- ]may thus
produce a lasting stigma that strongly colors the way others regard and interact with them and
the way they conceive of themselves. Stigma has been defined as an attribute that is deeply
discrediting. Stigmatizing people often causes others to view them as being unable to participate
in life normally. The stigmatizing label thus discredits individuals, often pushing them to the
periphery of any social situation in which they are involved. Stigmatization frequently results in
excluding individuals from social activities and opportunities. It is as though society, in an effort
to prove the correctness of its label, proceeds to narrow the life chances of the stigmatized
person to the preconceived notions connected with the stigma.
Id.
99

However, laying the problem at substance abuse’s door is no solution because
substance abuse often begins as a method of self-medicating mental illness. See Heyrman, supra
nn.15, 54. Moreover, we are told by science that those who fall into addiction to the extent they
will steal or kill to obtain their substance of choice are themselves in the grip of a brain
abnormality, very likely transmitted genetically, which makes them particularly vulnerable to
addiction. See Nat’l Inst. on Drug Abuse, The Economic Costs of Alcohol and Drug Abuse in
the United States 6.2.3 (citing the need to support a drug habit as one of the underlying causes of
drug-related crime), available at http://www.drugabuse. gov/EconomicCosts/Chapter6.html#6.2
(last visited Mar. 2, 2005); John O’Neill, A Gene for Getting Hooked, N.Y. Times, Nov. 30,
2004, at F9 (asserting that “researchers have come to believe that genetic factors make some
people more susceptible to addiction ...”).
26

J. Bard “Incarceration of Individuals with Serious M ental Illness”

Wittgenstein100 or J.L. Austin101 describe as “labeling.”102 What we call things affects how we
interpret them.103 For example, I believe society is comfortable applying the word “illness” to
conditions ranging from food poisoning to influenza to lung cancer. Calling someone “ill” says
nothing about the extent of the illness or the degree of impairment. Just because someone wakes
up with a sore throat and a stuffy nose does not mean they are too sick to go to work. By the
same token, calling someone mentally ill should say nothing about the degree or effect of mental
illness and does not answer any legal or ethical questions about his level of responsibility for
criminal acts.
There are many definitions of illness that are all related to the concept that something is
abnormal. For example, one might say that a woman with high blood pressure is ill even though
she feels normal. Even if it is possible through some form of brain imaging to determine who has
normal brain function and who does not, such a test would not provide any information about
how that person’s behavior is affected.104 Moreover, the current insanity defense is not based on
a diagnosis, but rather on evidence of how that diagnosis affects a particular individual’s thought
patterns.105 For advocates of the mentally ill, one of the strongest objections to diagnosis-based
sentencing is the implication that the mentally ill as a whole are a group of potential criminals.
These advocates cite compelling evidence that the mentally ill are no more likely to commit

100

Ludvig Wittgenstein, The Blue and Brown Books 27-28 (Harper & Row 1965) (1958)
(arguing that words do not have inherent meaning but rather agreed upon meanings).
101

J.L. Austin, How to Do Things with Words (1962) (describing the power of words to
shape perception).
102

For a discussion of labeling, see generally Bruce J. Winick, The Side Effects of
Incompetency Labeling and the Implications for Mental Health Law, 1 Psych. Pub. Pol’y & L. 6
(Mar. 1995).
103

Id. at 10.

104

See Joanmarie Illaria Davoli, Psychiatric Evidence on Trial, 56 SMU L. Rev. 2191,
2212-13 (2003) (distinguishing between “traditional legal standards for mental illness [that]
envision a person suffering from a problem that robs him of free will” and psychiatrists’ view
that “because every single one of our actions and thoughts are controlled by our brains [the
presence of a mental illness] does not mean the absence of free will”).
105

See Mark J. Heyrman, Five Things Every Lawyer Should Know About Mental Health
Law, 18 CBA Rec. 31 (“Proof of mental illness, without more, will rarely have legal
consequences.”). In Durham v. United States, Judge David Bazelon advanced the proposition
that a legal finding of insanity could be based on the presence of a diagnosable mental illness.
See Perlin, Jurisprudence, supra note 83, at 85-87. The test was widely criticized as useless for
answering questions of individual responsibility, and it is no longer a criterion in any state. Id.
27

J. Bard “Incarceration of Individuals with Serious M ental Illness”

violent crimes than the general population.106 Mental illness is not a synonym for lack of moral
character or humanity.
V. What Does the History of the Insanity Defense Show about Anglo-American Attitudes
toward Mental Illness?107
It would be reductionistic, but in many respects true, to say that the history of insanity defense
jurisprudence tells us that society holds people responsible for their crimes unless they are so
impaired that they lack the ability to know that what they are doing is a crime.108 Nevertheless, it
is helpful to review past and current legislative measures addressing crimes committed by the
mentally ill through this heuristic. The construct of the current system is that there is a tipping
point that switches the scales from “responsible” to “not responsible.”109 While not denying that
there should be such a point, the more important question is whether identifying that point is
sufficient to establish a just method for the state to interfere with a person’s fundamental right to
106

See Korn, supra note 19, at 612:
While some studies have shown that people with mental illness are no more violent than the
general population, other studies indicate that although there is a correlation between violence
and mental illness, it is limited. Suffice it to say, not all people who are mentally ill will commit
acts of violence. Moreover, recent studies indicate that about 90% of those diagnosed as
mentally ill are not violent... Clearly, mental illness status makes at best a trivial contribution to
the overall level of violence in society.
Id. See also Stephen J. Morse, A Preference for Liberty: The Case Against Involuntary
Commitment of the Mentally Disordered, 70 Cal. L. Rev. 54, 62 (1982):
At one point it was believed that mentally disordered persons were especially prone to violence,
but later empirical studies tended to support the opposite conclusion, which in turn became the
accepted wisdom for many years... . In sum, mental patients are not especially dangerous, and, if
they are slightly more dangerous than nonpatients, it is not a consequence of their mental
disorders. Finally, the mentally disordered account for much less violence in absolute terms than
normal persons.
Id. See Bernard L. Diamond, The Psychiatric Prediction of Dangerousness, 123 U. Pa. L. Rev.
439, 448 (1974) (citing studies that “tend to show a lesser involvement in criminal behavior by
the mentally ill than is true for the general population”).
107

See Christopher Slobogin, An End to Insanity: Recasting the Role of Mental Disability
in Criminal Cases, 86 Va. L. Rev. 1199, 1208-23 (2000) [hereinafter Slobogin, Insanity]
(providing an excellent review of the history of the insanity defense).
108

Nusbaum, supra note 14, at 1521-24.

109

For an analysis of the tipping point theory, see Malcolm Gladwell, The Tipping Point:
How Little Things Can Make a Big Difference (2000) (Gladwell develops a theory that it is
possible to identify a specific moment when a string of events results in social change).
28

J. Bard “Incarceration of Individuals with Serious M ental Illness”

liberty. As discussed infra, the current system already recognizes varying levels of responsibility
and consequences. A child who steals a candy bar is treated differently from an adult who does
the same thing. Even when the result of an act is death, the state has wide discretion in how to
characterize that act.110 For example, we know that if a person is struck by lightning while
driving a car and then hits a pedestrian, he does not bear the same level of responsibility as the
driver who hits a pedestrian after drinking a case of beer.111 But where does that leave the
mentally ill? How is mental illness understood as an influence on behavior?
Dissatisfaction with the insanity defense is firmly rooted in history.112 From Daniel
McNaughton113 to John Hinckley, highly publicized attacks on public figures by the mentally ill
have caused society to reflect on its methods for assessing criminal responsibility.114 Despite
efforts to develop a workable insanity defense, the law changed to reflect the old McNaughton

110

See generally LaFave & Scott, supra note 77, at 603-83 (discussing crimes ending in
death that may or may not be classified as murder, therefore calling for varying types of
punishment).
111

See Polston v. State, 685 P.2d 1, 9 (Wyo. 1984) (“Voluntary intoxication resulting in
unconsciousness is not as complete a defense as unconsciousness resulting from other causes
might be”); Rylander v. Texas, 75 S.W.3d 119 (Tex. Ct. App. 2002) (declaring trial counsel
ineffective for failing to present medical evidence to support defendant’s claim that when he ran
his truck into a police officer he was suffering from a diabetes-induced blackout).
112

Slobogin, Insanity, supra note 107, at 1220-22.

113

Daniel McNaughton asserted that he should not be held guilty of attempting to kill
Prime Minister Robert Peel on January 24, 1843, because he was insane at the time. John Biggs,
The Guilty Mind: Psychiatry and the Law of Homicide 95, 101 (1967). McNaughton believed
Peel was persecuting him for political reasons and that Peel was traveling in what was actually
McNaughton’s own carriage. Id. at 97-98. I use what has become the modern convention of
spelling his name “McNaughton” rather than the traditional use of the oddly punctuated
“M’Naghten.” There is no way to know which is correct. See Cynthia G. Hawkins-Leon, The
Literature as Law: The History of the Insanity Plea and a Fictional Application Within the Law
& Literature Canon, 72 Temp. L. Rev. 381, 390, n.43 (1999). Hawkins-Leon uses the
“M’Naghten” spelling and quotes Justice Frankfurter in Of Law and Life & Other Things That
Matter: Papers and Addresses of Felix Frankfurter 1956-1963, at 3 (Philip B. Kurland ed., 1964)
(“To what extent is a lunatic’s spelling even of his own name to be deemed as authority?”). Id.
On the other hand, one might argue that if there is anything to which a lunatic should be entitled,
it is the spelling of his own name.
114

Michael L. Perlin, “The Borderline Which Separated You from Me”: The Insanity
Defense, the Authoritarian Spirit, the Fear of Faking and the Culture of Punishment, 82 Iowa L.
Rev. 1375, 1375, 1380-83 (1996-97) [hereinafter Perlin, Borderline].
29

J. Bard “Incarceration of Individuals with Serious M ental Illness”

standard that excuses from criminal punishment only those individuals whose mental illness
caused a complete lack of awareness.115 Current proposals to improve the insanity defense can be
characterized as variations of historical efforts to reconcile the morality of assigning criminal
responsibility to a person who does not seem to know what he is doing and cannot be deterred by
fear of punishment. Thus, most popular insanity defense reforms require complete detachment
from reality.116 The exception is the American Law Institute’s model law, which allows for the
possibility that an individual knows what she is doing is wrong, but is unable, due to mental
illness, to stop herself.117
One of the best accounts of the history of the insanity defense was written by Third Circuit Court
of Appeals Judge John Biggs in 1955.118 In The Guilty Mind, Judge Biggs traces the origin of the
insanity defense in English law to the reign of Henry III, when pardons for “persons committing
homicides while of unsound mind were not unusual.”119 Later, “complete madness [became] a
defence to a criminal charge.”120 Judge Biggs notes that in 1581, a leading treatise of British law
instructed that “a mad man or a naturall foole, or a lunatike at the time of his lunacie” who had
no knowledge of good or evil did not have criminal intent, and therefore could not be found
responsible for his actions.121

115

Id. at 1382.

116

Carmen Cirincione, Revisiting the Insanity Defense: Contested of Consensus?, 24 Bull.
Am. Acad. Psychiatry & Law 165, 166 (1996). The three most discussed proposals are
abolishing the insanity defense and replacing it with a mens rea standard; creating a verdict of
“guilty but mentally ill” which recognizes mental illness, but still assesses full criminal
responsibility; and setting up mental health courts to divert the less dangerous offenders from the
prison system. Id.
117

Model Penal Code & Commentaries 4.01 (1962).

118

Rita James Simon, The Jury and the Defense of Insanity 16 (Transaction Publishers
1999) (1967). “The Guilty Mind is based on a lecture Judge Biggs gave as a recipient of the
Isaac Ray Award, given each year by the American Psychiatric Association to an individual who
‘has made a laudable contribution to the improvement of the relationship of law and
psychiatry.’” Id. at 16.
119

Biggs, supra note 113, at 83.

120

Id.

121

Id.
30

J. Bard “Incarceration of Individuals with Serious M ental Illness”

Judge Biggs shows that the trend for viewing insanity as an all-or-nothing state122 is rooted
firmly in the history of Anglo-American law.123 Pointing to several historic cases, he notes that
the law’s view of behavior that could be excused by insanity has always been based on an
assumption of incapacitating mental illness.124 An understanding that insanity could negate
criminal responsibility was based on the same principle that excused autonomic muscle
twitches.125 There was no attempt to evaluate thought processes, but rather to recognize rare
instances in which the body was overtaken by complete disability.126
Later, Mr. Justice Tracy’s instructions to the jury in the trial of Edward Arnold in 1723
emphasized that “in order to avail himself of the defense of insanity ‘a man must be totally
deprived of his understanding and memory, so as not to know what he is doing, no more than an
infant, a brute, or a wild beast.’”127 Then in 1840, Edward Oxford shot at Queen Victoria.128 The
jury’s instruction in the trial asked several times if the defendant could not distinguish between
right and wrong as a result of his diseased mind.129 Judge Biggs wrote that “by 1840 the English
common law was rapidly developing a procrustean theory of criminal responsibility for the
mentally ill and only the meet occasion was required to bring forth full-blown a complete and

122

Although a state is free to consider mental impairment as a factor in the ability to form
intent to commit a crime - even when the defendant is not raising an insanity defense - the
United States Supreme Court has long held that this is not a constitutional requirement. See
Fisher v. United States, 328 U.S. 463 (1946) (holding that a District of Columbia court did not
have to instruct the jury to consider whether the defendant’s mental illness resulted in a
diminished capacity for premeditation); Kimberley Reed Thompson, The Untimely Death of
Michigan’s Diminished Capacity Defense, 82 Mich. B.J. 17, 17-19, (discussing the Michigan
Supreme Court’s decision in People v. Carpenter, 627 N.W.2d 276 (2001) that the existence of
an insanity defense law “precludes the use of ‘any evidence’ of lack of mental capacity short of
legal insanity to reduce criminal responsibility by negating specific intent”).
123

Biggs, supra note 113, at 81-117.

124

Id. at 121-46.

125

See Joshua Dressler, Understanding Criminal Law 9.02(C), 25.03 (3d ed. 2001)
(discussing the nature of voluntariness and free will).
126

Id.

127

Biggs, supra note 113, at 88.

128

Id. at 94.

129

Id. at 94-95.
31

J. Bard “Incarceration of Individuals with Serious M ental Illness”

disastrous rule of law.”130 That opportunity, he reports, came with the trial of Daniel
McNaughton.131
The story of Daniel McNaughton’s trial for assassination is often retold. In a series of events
seemingly ripped from a Dickens novel, Daniel McNaughton attempted to kill Prime Minister
Robert Peel on January 24, 1843.132 McNaughton believed Peel was persecuting him for political
reasons and that Peel was traveling in what was actually McNaughton’s own carriage.133
McNaughton missed Peel but killed Peel’s private secretary, Edward Drummond.134
McNaughton was arrested and tried for murder.135 As history tells us, nine medical witnesses
testified that McNaughton was mentally ill.136 Applying the then-prevailing test of insanity,
McNaughton was acquitted by reason of insanity and sentenced to an insane asylum where he
died twenty-two years later.137
What happened next had very little to do with McNaughton personally and much to do with the
general reaction to the verdict. The British public was outraged at the acquittal.138 Queen

130

Id. at 95.

131

Id.

132

Biggs, supra note 113, at 95.

133

Id. at 97-98.

134

Id. at 95. This marks an interesting precursor to John Hinckley’s shooting and almost
killing President Reagan’s press secretary James Brady 140 years later.
135

Id. at 96.

136

Id. at 101.

137

One of the flood of articles comparing McNaughton’s case to what would become the
twentieth century’s most celebrated insanity acquittal - the trial of John Hinckley - is this one:
Irwin N. Perr, The Insanity Defense: A Tale of Two Cities, 140 Am. J. Psychiatry 873-74 (1983).
138

Richard Moran, Knowing Right from Wrong: The Insanity Defense of Daniel
McNaughtan 19-20 (1981). Thomas Campbell expressed this general sentiment about the
insanity defense:
Ye people of England: exult and be glad for ye’re now at the will of the merciless mad.
[The insane are] a privilege’d class, whom no statute controls and their murderous
charter exists in their souls. Do they wish to spill blood - they have only to play a few
pranks - get asylum’d a month and a day. Then heigh to escape from the mad-doctor’s
keys, and to pistol or stab whomsoever they please.
32

J. Bard “Incarceration of Individuals with Serious M ental Illness”

Victoria, previously the target of an assassination attempt herself as mentioned supra,
summoned all of the judges in England’s highest court (“the Law Lords”) to protest the verdict
and to express her dissatisfaction with the contemporary state of the insanity defense.139 What
came out of the meeting was a principle that is now known as the “McNaughton Rule,” which
would have made, according to some readings of the case, McNaughton’s acquittal less likely.140
McNaughton’s rule is usually expressed as stating:
Every man is to be presumed to be sane ... . To establish a defense on the ground of
insanity, it must be clearly proved, that, at the time of the committing of the act, the party
accused was laboring 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

Id.
139

Biggs, supra note 113, at 103.

140

Mora, supra note 138, at 109. Professor Elyn Saks argues that to say that McNaughton
would not have been acquitted is to read the case too narrowly. Telephone Interview with Elyn
Saks, Orrin B. Evans Professor of Law, Psychiatry and the Behavioral Sciences, University of
Southern California Law School (July 29, 2004). She points out that while we do not know the
exact nature of his illness, he certainly suffered from the global delusion that he intended to kill
him. Id. This is certainly possible. I would suggest that a jury applying the McNaughton standard
to McNaughton himself would be in the same bind as juries are today when they try to apply
legal principles to the behavior of people with severe mental illness. For example, even if
McNaughton thought Prime Minister Peel intended to kill him, would he be justified in killing
Peel first? There is certainly no claim that McNaughton acted in direct response to a provocation
from Prime Minister Peel. Rather, the evidence is that he ambushed Peel who had no idea of his
presence in the park. Biggs, supra note 113, at 94-95. Similarly, Yates was found guilty because
her delusion, as presented by the defense, did not seem to the jury to be an adequate justification
for her actions. Casarez, supra note 19 (asserting that while jurors believed Yates was mentally
ill at the time she murdered her children, jurors believed Yates could distinguish between right
and wrong, resulting in the jurors’ rejection of the insanity defense). She did not claim that God
commanded her to drown the children or that she was unaware that society would view her
actions as illegal. Doug J. Swanson, Why Did Andrea Yates Kill? Author Helps Provide Pieces
of the Puzzle Behind Killer’s Acts, Dallas Morning News, Mar. 7, 2004, at 9G; O’Malley, supra
note 20, at 153-54. Thus, she was held responsible for knowing what she was doing and knowing
it was illegal. Dawn Fratangelo, The Jury Speaks: Jury Members Discuss Andrea Yates’ Trial,
Dateline NBC (NBC television broadcast, Mar. 17, 2002). The force of her delusions was not, in
the jury’s view, sufficient to overcome her free will. Id. My major criticism of the insanity
defense as currently constructed is that it relies too much on analyzing the content of a delusion
rather than recognizing the substantial mental impairment that having a delusional set of beliefs
evidences.
33

J. Bard “Incarceration of Individuals with Serious M ental Illness”

know he was doing what was wrong.141
Queen Victoria’s Law Lords thus instructed future juries that their task in evaluating an insanity
plea was to determine if they had heard sufficient evidence to conclude that either: (1) “the
prisoner... had that competent use of his understanding as that he knew that he was doing ... a
wicked and wrong thing,” in which case he was guilty; or (2) the prisoner “was not sensible at
the time he committed the act” in which case he was not guilty.142 Therefore, as the Law Lords
summarized the test, “if on balancing the evidence in your minds you think the prisoner capable
of distinguishing between right and wrong, then he was a responsible agent and liable to all the
penalties the law imposes. If not ... then you will ... acquit the prisoner.”143 The McNaughton rule
for insanity was adopted in the United States with the exception of only a few states.144 However,
as early as 1887, the Supreme Court of Alabama, for one, expressed its dissatisfaction with the
rule, claiming it did not adequately consider the situation of the person who was less than fully
insane, but still impaired by mental illness.145 This concern can be traced throughout the
American jurisprudence of the insanity defense,146 and was solidified by Judge David Bazelon’s
landmark rejection of the knowledge-based test in the 1954 case of Durham v. United States.147
Judge Bazelon wrote that a rigid requirement that a defendant lacked knowledge of his actions
being right or wrong resulted in basing insanity on the presence or absence of a particular
symptom.148
While it is fair to say that the insanity defense was never popular, its watershed moment was
after John Hinckley’s attempt to assassinate then-President Ronald Reagan on March 30,

141

Moran, supra note 138, at 173 (quoting Chief Justice Tindal’s majority opinion).

142

Biggs, supra note 113, at 101.

143

Id. at 102.

144

Id. at 116

145

Hawkins-Leon, supra note 113, at 394, 393-95 (1999) (discussing Parsons v. State, 2
So. 854 (Ala. 1887)).
146

Perlin, Jurisprudence, supra note 83, at 83-84.

147

Id. at 84-86; see also Durham v. United States, 214 F.2d 862, 874-75 (D.C. Cir. 1954)
(holding that a defendant can be found insane if his actions were a product of mental illness),
overruled by United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972).
148

Durham, 214 F.2d at 874.
34

J. Bard “Incarceration of Individuals with Serious M ental Illness”

1981.149 In 200 years, the story of how John Hinckley shot President Reagan in an attempt to
impress actress Jodie Foster will still be as familiar to lawyers as the details of the McNaughton
case are to us.150 Just as McNaughton’s acquittal outraged the British public, John Hinckley’s
acquittal outraged the American public.151 The public outrage resulted in suggestions that the
insanity defense be eliminated.152 What may be lost in the mists of time, however, is the fact that
although the jury in the District of Columbia certainly found Hinckley not guilty by reason of
insanity153 (“NGRI”) and that this verdict was not accepted by the public, in fact Hinckley’s
“history” of mental illness was startlingly slight compared either to Daniel McNaughton’s or to
the usual successful insanity defense.154 Regardless of what was proved to the jury at trial about
Hinckley’s state of mind at the time of the crime, there was disagreement about Hinckley’s
degree of mental illness.155 He did not claim he acted based on a deific decree,156 nor did he
claim not to have known what he was doing. The law in the District of Columbia at that time
required the prosecution to prove Hinckley sane beyond a reasonable doubt.157 Indeed,

149

Joanna Pitman, Ronald Reagan Is Shot in the Chest, Times (London), Jan. 3, 2004, at
6, available at 2004 WLNR 4736900.
150

Id.

151

See Sandy Banisky, John Hinckley’s Modest Request: Fairness, Balt. Sun, Oct. 25,
1996, at 2A, available at 1996 WLNR 937117.
152

See id.

153

Carol D. Leonnig, Judge Grants Hinckley Unsupervised Outings: Stays at Parents’
Home Not Allowed, Wash. Post, Dec. 18, 2003, at A1, available at LEXIS, News Library,
Wpost File.
154

See Hawkins-Leon, supra note 113, at 400 (saying that the nature of Hinckley’s
“disturbance” is uncertain).
155

United States v. Hinckley, 525 F. Supp. 1342 (D.D.C. 1981), reh’g denied, 529 F.
Supp. 520 (D.D.C.) (per curiam), aff’d, 672 F.2d 115 (D.C. Cir. 1982) (for the pretrial rulings),
Crim. No. 81-306 (D.D.C. 1981) (for the trial record).
156

A “deific decree” is an assertion by a defendant that he was instructed by God to act as
he did. Margaret E. Clark, The Immutable Command Meets the Unknowable Mind: Deific
Decree Claims and the Insanity Defense After People v. Serravo, 70 Denv. U. L. Rev. 161, n.3
(1992).
157

See United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972) (containing an
explanation of the District of Columbia insanity defense law at the time Hinckley was acquitted).
In Brawner, the court adopted the following portions of the (then existing) American Law
35

J. Bard “Incarceration of Individuals with Serious M ental Illness”

Hinckley’s lawyers offered testimony that he was “psychotic” at the time of the crime.158
Therefore, not only did Hinckley do a much despised thing when he attempted to assassinate a
well-liked president, murdered a police officer and wounded the President’s press secretary,
James Brady,159 he did not meet the de facto standard of insanity in Washington D.C.160 Hinckley
was not - as Scott Turow would write - “crazy enough.”161
VI. Recent Developments in the Insanity Defense
In the wake of dissatisfaction with Hinckley’s acquittal, the federal government and a majority
of states set about to review their procedures for treatment and retention of individuals who were
acquitted by reason of insanity so as to make it more difficult for insanity defenses to succeed.162

institute’s primary provision from the Model Penal Code 4.01(1) (1972): “A person is not
responsible for criminal conduct if at the time of such conduct as a result of mental disease or
defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his
conduct or to conform his conduct to the requirements of the law.” The court decided to adopt
the ALI rule as “the doctrine excluding responsibility for mental disease or defect, for
application prospectively to trials begun after [the date of the decision].”
158

Banisky, supra note 151 (stating that Hinckley was found not guilty by reason of

insanity).
159

Pitman, supra note 149. It is interesting to consider that James Brady was then, as he is
now, a highly charming man and much liked by the Washington press corps. See, e.g., Remarks
of President Clinton at Ceremony to Honor Recipients of the Presidential Medal of Freedom,
Fed. News. Svc., Sept. 9, 1996 (“James Brady came to national prominence as a respected and
popular press secretary for President Ronald Reagan.”). Perhaps while the relevant parties are
alive, a historian of journalism will explore whether the reporters’ personal anger at Brady’s
being shot in the head translated into making the coverage of Hinckley even more negative than
it might have been.
160

United States v. Hinckley, 525 F. Supp. 1342, 1346 (D.D.C. 1981).

161

Turow, supra note 81, at 13.

162

See Hawkins-Leon, supra note 113, at 402-03 (1999); see the Insanity Defense Reform
Act of 1984, 18 U.S.C.A. 17(b) (West 1994) (giving the defendant the burden of proving the
insanity defense as opposed to the government being responsible for finding the defendant sane).
See also Jay M. Zitter, Construction and Application of 18 U.S.C.A. 17, Providing for Insanity
Defense in Federal Criminal Prosecution, 118 A.L.R. Fed. 265 2(a) (1994).
36

J. Bard “Incarceration of Individuals with Serious M ental Illness”

Twenty-five states changed their insanity defense from July 1982 through September 1985.163 By
1990, twenty-five states and the District of Columbia had adopted a version of the McNaughton
test; twenty states implemented the ALI test; and twelve states allowed “the guilty but mentally
ill” verdict.164 Many states dropped the ALI concept of a defendant’s ability “to conform his
conduct to the requirements of law” and simply re-adopted the old McNaughton knowledgebased standard of responsibility.165 Other changes included shifting the prosecutor’s burden of
proving sanity to the defendant, adopting knowledge-based standards of proof, and preventing
experts from testifying on the ultimate issue of sanity or insanity.166 In response to the public’s
belief that the insanity defense is broken, there have been, and continue to be, numerous efforts
to “fix” it. A brief review of the efforts currently under way in the United States to reform the
insanity defense shows that none of these proposals address the significant issue of how to treat
the vast majority of individuals with mental illness who commit crimes.
A. Abolishing the Insanity Defense
One of the most extreme approaches - abolishing the insanity defense - has been endorsed by
many groups, including the American Medical Association.167 Currently, Idaho, Montana, Utah,
and Kansas do not offer an insanity defense.168 In a fascinating Note in Cornell Law Review,
Daniel Nusbaum carefully explains that in doing away with the insanity defense, these states are
in fact doing no more than adopting a pure mens rea standard of guilt.169 Thus, if a defendant has

163

Lisa Callahan et al., Insanity Defense Reform in the United States - Post Hinckley, 11
Mental & Physical Disability L. Rep. 54-55 (1987).
164

See Hawkins-Leon, supra note 113, at 402, 445, n.56 (citing Henry J. Steadman et al.,
Before and After Hinckley: Evaluating Insanity Defense Reform 37, tbl. 3.1 (1993)).
165

Id. at 397, 402.

166

Id. at 402-03.

167

See William J. Winslade & Judith Wilson Ross, The Insanity Plea 219-20 (1983)
(arguing that the insanity defense should be abolished in order to eliminate the idea of a “sane”
or “insane” defendant, and that a “sliding scale” system should be substituted in place of the
insanity defense where “the less sane would receive more treatment, while the more sane
someone is, the more punishment he would receive”). Id. at 220.
168

Nusbaum, supra note 14, at 1515 n.15 (noting that these four states take an extreme
approach to insanity defense reform).
169

Id. at 1519-20 (discussing how the mens rea approach forces defendants to use a
negativing insanity defense).
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J. Bard “Incarceration of Individuals with Serious M ental Illness”

any awareness of the act he is committing, he cannot prove insanity.170 In effect, this is not any
different from what many states call an insanity defense based on the McNaughton rule’s
requirement of a complete lack of knowledge, thus a complete lack of criminal intent. The
Supreme Court gave tacit support to abolishing the insanity defense in State v. Cowan by
refusing to grant certiorari to review Montana’s decision that the Constitution did not require an
insanity defense so long as the standard for guilt is still possession of criminal intent.171 The
Montana Supreme Court’s standard for non-responsibility is total lack of awareness.172 Under
this standard, for example, had Andrea Yates thought she was drowning rats in her bathtub, she
would lack mens rea, a concept explored infra in Section IX of this Article. However, if she were
aware that she was drowning her children, as she says she was,173 and if her visual perceptions
were functioning, then she would have exhibited the intent to commit the drowning. Under these
standards, physical perception is placed above any thought process, no matter how defective that
thought process.174 Similarly, if someone like the man Oliver Sacks describes who mistook his
wife for a hat actually perceived her as a charging grizzly bear, he would lack mens rea for
beating her to death with the nearest heavy object.175
B. Guilty But Mentally Ill
Another approach to fixing the insanity defense is reflected in the proliferation of the “guilty but
mentally ill” (GBMI) verdict, which was first adopted by Michigan in 1975 and later in twenty
other states.176 The GBMI verdict permits the jury to impose full responsibility for a crime with

170

Id. at 1521.

171

See State v. Cowan, 861 P.2d 884, 888-89 (Mont. 1993), cert denied, 511 U.S. 1005

(1994).
172

Id. at 889 (noting that the Montana legislature finds individuals responsible when they
act with a proven criminal state of mind, regardless of their motivation or mental condition).
173

See Timothy Roche, The Yates Odyssey, Time Mag., Jan. 28, 2002, at 42, available at
LEXIS, News Library, Time File.
174

See Nusbaum, supra note 14, at 1522-23.

175

Oliver Sacks, The Man Who Mistook His Wife for a Hat 10 (1986).

176

E.g. Bradford H. Charles, Pennsylvania’s Definitions of Insanity and Mental Illness: A
Distinction With a Difference, 12 Temp. Pol. & Civ. Rts. L. Rev. 265, 268 (2003). Renee
Melancon, Note, Arizona’s Insane Response to Insanity, 40 Ariz. L. Rev. 287, 294-317 (1998)
(detailing the development of Arizona’s “guilty except insane” defense statute); see also Anne S.
Emanuel, Guilty But Mentally Ill Verdicts and the Death Penalty: An Eighth Amendment
Analysis, 68 N.C. L. Rev. 37, 39 (1989).
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J. Bard “Incarceration of Individuals with Serious M ental Illness”

the acknowledgement that the defendant is also mentally ill.177 In finding a defendant GBMI, the
jury recognizes that the plaintiff suffers from a medically diagnosable mental illness; however,
the effects of the illness are not sufficient to excuse responsibility.178 The GBMI verdict means
that an individual had the specific intent or mens rea to commit a crime, but was mentally ill.179
The effect of a GBMI verdict is that the defendant is found guilty and sentenced to a prison, but
is supposedly provided with mental health treatment there.180 However, juries may give a GBMI
verdict with the “false belief” that the defendants will “actually receive treatment.”181 In fact,
there is no added right to mental health care based on the GBMI verdict.
Thus, in my opinion, the GBMI verdict is a euphemism for a regular criminal sentence: It is
neither an indication that the inmate is in need of particular care, nor a promise that he or she
will get psychological treatment while in prison. In fact, “while the defendant found NGRI will
likely be committed to a treatment facility and therefore may become eligible for release, the
GBMI defendant, if convicted, may serve the statutory maximum prison sentence.”182 Because
the right to mental health in prison flows from the Eighth Amendment - not from any action by a
sentencing judge or jury - many commentators conclude that the GBMI verdict is not a form of

177

See Debra T. Landis, Guilty But Mentally Ill Statutes: Validity and Construction, 71
A.L.R. 4th 702 2(a) (1989) (“To date no case has been found in which an appellate court has held
a guilty but mentally ill statute to be unconstitutional”). As of 2004, there still had been no such
holding. See also Northrup, supra note 82.
178

See id. (noting GBMI as an in-between classification).

179

Mark A. Woodmansee, Student Article, The Guilty But Mentally Ill Verdict: Political
Expediency at the Expense of Moral Principle, 10 Notre Dame J.L. Ethics & Pub. Pol’y 341, 366
(1996).
180

See id. (asserting that “by ... selecting the GBMI option, jurors may in fact be acting
under a false belief that a GBMI offender will actually receive treatment for the mental illness
that they have noted.”); see also Emanuel, supra note 176, at 41, 41 n.25 (citing Gare A. Smith
& James A. Hall, Evaluating Michigan’s Guilty But Mentally Ill Verdict: An Empirical Study,
16 U. Mich. J.L. Ref. 77, 79 (1982) (“[Inmates] also are guaranteed (at least theoretically)
necessary mental health treatment during incarceration.”).
181

See Emanuel, supra note 176. See also Woodmansee, supra note 179, at 383
(explaining that the GBMI does not improve the care of mentally ill individuals who are
convicted of crimes. “Furthermore, the GBMI verdict does not guarantee that mentally ill GBMI
offenders will receive mental health treatment... . the stark reality of the GBMI verdict is that
GBMI prisoners rarely receive psychiatric or psychological treatment. As a result, GBMI
prisoners are often punished in a manner identical to those prisoners who were found ‘guilty.’”).
182

Woodmansee, supra note 179, at 352.
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J. Bard “Incarceration of Individuals with Serious M ental Illness”

the insanity defense.183 Because the GBMI verdict still results in a determinate prison sentence,
one might analogize GBMI to a verdict of guilty but diabetic, or guilty but hypertensive.
The GBMI verdict can therefore be criticized as a gimmick to encourage jurors to deliver a
guilty verdict, even though it is obvious that the defendant suffers from mental illness.184 In
many states, the GBMI verdict is proposed as an alternative to not guilty by reason of insanity
that will assure that the defendant will remain incarcerated.185 Borum and Fulero note that groups
such as the American Bar Association’s Criminal Justice Mental Health Standards, the American
Psychiatric Association’s Statement on the Insanity Defense, the National Mental Health
Association’s Commission on the Insanity Defense, the American Psychological Association,
and NAMI “have all opposed or recommended against the adoption of GBMI.”186 Research on
the Michigan experience shows that defendants found GBMI receive the same inadequate mental
health care as the other inmates.187 While it is difficult to disagree with the premise that people in
prison with mental illnesses should receive appropriate care, the GBMI verdict is not an
alternative to the insanity defense, but rather an addition to the guilty verdict.
Advocates of the GBMI verdict argue that “guilty but mentally ill” is intended to acknowledge
the need for mental health treatment when the defendant is not legally insane, and to reduce the
number of insanity convictions by giving juries a way to acknowledge the defendant’s mental

183

U.S. Const. amend. VIII; see also Emanuel, supra note 176, at 59-67; John H. Blume
& Sheri Lynn Johnson, Killing the Non-Willing: Atkins, the Volitionally Incapacitated, and the
Death Penalty, 55 S.C. L. Rev. 93, 100 (2003); Van W. Ellis, Guilty But Mentally Ill and the
Death Penalty: Punishment Full of Sound and Fury, Signifying Nothing, 43 Duke L.J. 87, 110
(1993).
184

As a side note: given their post-trial interviews, it is highly likely that Andrea Yates’
jurors would have found her guilty but mentally ill had this been an option in Texas. See
Casarez, supra note 19, at 500 (noting that while jurors believed Andrea Yates was mentally ill
at the time she murdered her children, jurors believed Yates could distinguish between right and
wrong, resulting in the jurors’ rejection of the insanity defense).
185

See Landis, supra note 177, at 2(a).

186

Randy Borum & Solomon M. Fulero, Empirical Research on the Insanity Defense and
Attempted Reforms: Evidence Toward Informed Policy, 23 Law & Hum. Behav. 117, 124
(1999).
187

Andrew J. Black, Comment, People v. Lloyd: Michigan’s Guilty But Mentally Ill
Verdict Created with Intention to Help Is Not Really a Benefit at All, 79 U. Det. Mercy L. Rev.
75, 89 (2001).
40

J. Bard “Incarceration of Individuals with Serious M ental Illness”

illness without acquitting him.188 It warrants further research to discover what this public process
of acknowledging mental illness adds to the insanity defense. Some reformers support GBMI on
the grounds that it is the only way to convince juries that an individual who has in fact
committed a crime should not be set free, but should be treated instead.189 Unfortunately, as
noted above, it does not appear that GBMI defendants receive anything but the inadequate care
available to any inmate.190 Therefore, I would agree that if the GBMI verdict actually resulted in
a person with mental illness receiving appropriate care in an appropriate setting, then it would be
an acceptable alternative for a jury that believes that a defendant bears criminal responsibility yet
still was strongly influenced by a thought impairment not within his voluntary control.
Writing about his experience with the GBMI verdict in Pennsylvania, the Honorable Bradford H.
Charles observes that, although jurors are at first confused as to how to determine whether the
defendant’s mental illness is sufficient to excuse responsibility, “the ‘proverbial light bulb comes
on’ when the judge explains the import of their verdict.”191 The only way to be sure that the
defendant will be incarcerated for a long period of time is to find him GBMI rather than
NGRI.192 In addition, even if it were desirable to reduce the number of NGRI verdicts, there is no
evidence that GBMI does in fact reduce the number of insanity acquittals in the long run.193
Indeed, it makes sense that it would not. As noted earlier, if we accept that insanity pleas are a
very small proportion of pleas entered and that very few of these insanity pleas result in
acquittal, then it makes sense that the acquittals that do occur are based on a finding that the
defendant is not only mentally ill, but that his mental illness is so severe that it prevents him
from being held responsible for his actions. Fact-finders, whether juries or judges, are apparently

188

See Amos Robey, Guilty But Mentally Ill, 6 J. Am. Acad. of Psychiatry & L. 379
(1978) (asserting that the value of a GBMI verdict is that the defendant can get treatment but the
public is assured the defendant will be monitored, for example through probation with required
psychiatric treatment, unlike in the case of an acquittal).
189

See Black, supra note 187, at 83-84.

190

Id. at 89. See Woodmansee, supra nn.179, 182 (explaining that the GBMI verdict does
not improve the care of mentally ill individuals who are convicted of crimes).
191

Bradford H. Charles, Pennsylvania’s Definitions of Insanity and Mental Illness: A
Distinction with a Difference?, 12 Temp. Pol. & Civ. Rts. L. Rev. 265, 271 (2003). “Suddenly,
jurors understand that they are being asked to decide whether the defendant should go free or
face incarceration once his mental health treatment ends.” Id. at 271-72. Judge Charles is a
Pennsylvania state trial court judge for the 52nd Judicial District of Lebanon County. Id. at 265
n.a1.
192

See id.

193

See Woodmansee, supra note 179, at 362-63.
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J. Bard “Incarceration of Individuals with Serious M ental Illness”

not so distracted by a diagnosis of mental illness that they cannot make a decision as to criminal
responsibility.
C. Mental Health Courts
Although not intended to deal with violent crime, mental health courts may be the closest states
have come to recognizing that defendants with mental illness should be treated differently at the
time of trial. Mental health courts are intended to divert non-violent offenders into separate
courts for people with mental illness. The mental health advocacy community sees mental health
courts as a move to decriminalize mental illness by “creating authority in state criminal codes for
judges to divert non-violent offenders with severe mental illnesses away from incarceration into
appropriate treatment” and by “establishing specialty ‘mental health courts’ to hear all cases
involving individuals with severe mental illnesses charged with misdemeanors or non-violent
felonies.”194 This enables the courts to fulfill their “purpose of diverting as many of these cases
as possible ... into appropriate mental health treatment and services.”195 According to a recent
article by LeRoy L. Kondo, “in contrast to most generalist state trial courts, which rely upon the
time-honored adversarial system for ensuring justice, the MHCT [Mental Health Court] judge
facilitates largely non-adversarial court proceedings with an approach balanced between
treatment and punishment.”196 In 2000, Congress enacted, and President Clinton signed into law,
a bill authorizing grants to communities to set up these courts.197 It remains to be seen whether
194

Nami, Criminalization, supra note 49.

195

Id.

196

Kondo, supra note 71, at 291.

197

Pub. L. No. 106-515, 106 Stat. 1865 (2000). These courts initially had $ 4 million in
funding through the Bureau of Justice Assistance. NAMI, Department of Justice Announces
Availability of Funds for Mental Health Courts (Aug. 2, 2002), at http://www.namiscc.org/
News/2002/Summer/MentalHealthCourtGrants.htm (last visited Mar. 2, 2005). Both houses of
Congress passed bills to reauthorize federal funding of mental health courts through 2009, a bill
that the president signed. American Psychological Association, New Law Bolsters Treatment of
Mentally Ill Offenders, 46 Monitor on Psychology 18 (Jan. 2005),
http://www.apa.org/monitor/jan05/offenders.html (last visited Mar. 2, 2005); NAMI, Mental
Health Courts Reauthorization, http://www.nami.org/Content/ContentGroups/ Policy/Mental
Health Courts Reauthorization.htm (last visited Mar. 2, 2005). But in fiscal year 2004, no funds
were appropriated for the courts at all, while in fiscal year 2003, funding was $ 2.98 million.
Mental Health Courts, Bureau of Justice Assistance, at http://www.
ojp.usdoj.gov/BJA/grant/mentalhealth.html (last visited Jan. 11, 2005). For more background
material about mental health courts, see NAMI, Survey of Mental Health Courts (Sept. 2003), at
http://www.nami.org/Content/ContentGroups/Policy/Issues Spot lights/Mental Health courts
Survey.htm (last visited Mar. 2, 2005).
42

J. Bard “Incarceration of Individuals with Serious M ental Illness”

these courts will substantially reduce the number of mentally ill in prison.
The drawback of mental health courts as a global solution to crime committed by the mentally ill
is that they are reserved for nonviolent offenses. Although it is important to remember that
violent crimes make up only a small percentage of insanity pleas and that many people with
mental illness are in prison for non-violent offenses,198 a system that does not address the needs
of violent offenders can only be a partial solution. While the mental health courts, as currently
constituted, can only be part of a plan to adjudicate the mentally ill, the idea of mental health
courts is a positive step towards recognizing that a person can be impaired by mental illness
without being totally disabled by it. Just as GBMI was in some part intended to provide
treatment to defendants claiming mental illness,199 the mental health courts would serve the
societal goal of treating the sick even when the sick have committed crimes.
VII. Why the Insanity Defense is Unsatisfactory
As Michael Perlin shows in his article The Borderline Which Separated You from Me, there is
widespread dissatisfaction with the insanity defense.200 Society views current efforts to
determine the culpability of the mentally ill as hopelessly flawed.201 Whether it is described as “a
loophole,” “a legalistic slight of hand,” or a “travesty,” a large segment of the public does not

Additionally, the Mentally Ill Offender Treatment and Crime Reduction Act of 2003 passed both
chambers of the House and Senate and was cleared for the President on October 11, 2004. The
Act, inter alia, “authorizes the Attorney General to award grants to eligible State and local
governments ... to plan and implement programs that: ... promote public safety by ensuring
access to mental health and other treatment services for mentally ill adults or juveniles ... “ and
“directs that grants be used to create or expand: (1) mental health courts or other court-based
programs for such persons ... “. S. 1194, 108th Congress (2004). However, it is too early to tell
what the effect will be on the mentally ill; under the most expansive reading of the act, it does
not address the underlying lack of primary mental health care.
198

See John Q. LaFond & Mary L. Durham, Cognitive Dissonance: Have Insanity
Defense and Civil Commitment Reforms Made a Difference?, 39 Vill. L. Rev. 71, 93-94 (1994).
199

Landis, supra note 177, 2(a); Annotation, Guilty But Mentally Ill Statutes: Validity and
Construction, 71 A.L.R. 4th 702 2(a) (1989).
200

See Perlin, Borderline, supra note 114, at 1375-77.

201

See id. at 1403, n.178 (noting the media’s portrayal of the insanity plea as a “travesty”
and “loophole” which allows individuals to avoid moral responsibility).
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J. Bard “Incarceration of Individuals with Serious M ental Illness”

believe most defendants who disavow responsibility for their actions because of mental illness.202
Fascinating social science research demonstrates that the public does not believe mental illness is
an acceptable excuse for illegal behavior, and that the public does not believe in medicine’s
ability to know who actually is mentally ill.203
It is impossible to avoid the moral tone that overlays the insanity defense as it is now used.
Following Yates’ conviction for drowning her five children, there has been a flurry of articles
seeking protection for mothers with post-partum depression.204 We see the failure of Andrea
Yates to get the insanity defense as a failure of the system.205 Yet, experts have implied that if
anyone “deserved” such protection, she did.206 In contrast, Lorena Bobbit was found insane and
therefore not responsible for cutting off her husband’s penis, even though she had not before,
and has not since, shown any signs of being hindered by mental illness.207 Just as there are
“good” people who “deserve” the insanity defense, there are equally glaring examples of “bad”
people like Jeffrey Dahmer, who was found to be not insane despite his practice of killing and
then eating strangers.208 What also cannot be ignored is the issue of class. Andrea Yates was a

202

Id. at 1403, nn.167, 170-71.

203

Id. at 1403, 1412.

204

See, e.g., Manchester, supra note 19, at 714; Oberman, supra note 19, at 2-5.

205

See Pam Easton, Parnham: Insanity Statute Needs to Change, Assoc. Press, Mar. 28,

2002.
The lawyer for convicted child killer Andrea Yates wants to change the Texas insanity statute to
assist other mentally ill defendants and give his client something to live for.
. . . Parnham hopes his client’s conviction will allow for Texas’ insanity statute to be reworked
so mentally ill defendants have a chance of avoiding conviction for something they were
compelled to do because of an illness.
. . . “We’ve got a poster child in this case for a change in our insanity law,” Parnham said.
Id.
206

See Katie Couric, George Parnham, Andrea Yates’ Attorney, and Dr. Phillip Resnick,
Defense Witness for the Andrea Yates and Deanna Laney Trials, Discuss and Compare Verdicts
in Both Cases, NBC News (Apr. 5, 2004) (noting the disparity between Yates’ sentence and a
similar defendant who was acquitted).
207

Joan Biskupic, Insanity Defense: Not a Right, Wash. Post, Mar. 29, 1994, at A3
(commenting that Bobbitt successfully used the insanity defense and was acquitted).
208

See Anastasia Toufexis, Do Mad Acts a Madman Make?, Time Mag., Feb. 3, 1992, at

17.
44

J. Bard “Incarceration of Individuals with Serious M ental Illness”

white, college-educated nurse who was married to an aerospace professional.209 Critics of the
verdict cite to her recovery of reason during her imprisonment and the remorse she now feels.210
Yet is her situation any different from others with equally serious mental illnesses who were not
only convicted but executed? Do we know better than the Texas jury that her mental illness, as
presented in court, was severe enough to absolve her responsibility as defined by Texas criminal
law?211
A. Is There a Role for the Insanity Defense?
By reflecting on the insanity defense’s inadequacy to address the problem of the mentally ill
who commit crimes, I do not claim there should not be an insanity defense. I believe each state
and the federal government is able and entitled to make its own decisions about how it will
attribute criminal responsibility. Just as a state may decide that an involuntary muscle spasm
does not constitute intent,212 it may decide that a thought disorder can be serious enough to
negate intent.213 Whether that disorder is described as mental illness or as a severe manifestation
of mental illness, it is still up to the polity to determine how to evaluate responsibility.214 As a
matter of constitutional authority, a state may draft an insanity defense that only excuses from
responsibility individuals whose mental illness has left them with no ability to control their

209

Galanti, supra note 19, at 349; O’Malley, supra note 20, at 28.

210

Couric, supra note 206.

211

See AP, Yates Jurors, supra note 3, at A18 (explaining that jurors believed Yates was
mentally ill, but able to tell right from wrong when she killed).
212

See Herd v. State, 724 A.2d 693, 700 (Md. 1999):
A simple black-or-white classification of the mens rea as one involving a specific intent
or one involving only a general intent is but a part of the necessary examination. An
involuntary act - a muscular spasm or a fall, for example - would not render one guilty
even of a crime malum prohibitum let alone a crime malum in se. Even a crime malum
prohibitum requires a voluntary act. Mens rea literally means “a guilty mind.” With
respect to crimes mala in se, to wit, to crimes involving a mens rea, even general intent
may mean more than merely voluntarily doing the act that constitutes the actus reus.
Id. See generally U.S. Const. amend. X (stating that powers not delegated to the federal
government by the Constitution are reserved to the states).
213

See Utah Code Ann. 76-2-305(1)(a) (2003) (stating that “it is a defense to a
prosecution under any statute or ordinance that the defendant, as a result of mental illness, lacked
the mental state required as an element of the offense charged”); see generally U.S. Const.
amend. X.
214

See generally U.S. Const. amend. X.
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J. Bard “Incarceration of Individuals with Serious M ental Illness”

actions, or no awareness of the consequences of their actions.215 Whether the state calls this a
McNaughton test or describes it as an abrogation of the insanity defense, the result is the same.
A state that recognizes only total lack of awareness as an excuse essentially abolishes the
insanity defense and replaces it with a pure mens rea standard. Thus, the degree of any mental
illness short of complete awareness is irrelevant.
We need societal consensus on the purpose of punishment in order to ascribe responsibility for
criminal acts to individual actors.216 The first step in reaching such a consensus is to identify
what social mores are likely to be violated and thus needed to be reinforced.217 Implicit in
drafting laws is the expectation that it is for society’s benefit that the population complies with
the laws. This raises the next important question of how to achieve compliance. Until recently
questioned by psychological research, Anglo-American societies agreed that the best way to
prevent offenses against social mores and laws was to hold individuals who committed these
offenses responsible for their actions.218 If, however, it is not true that most people obey the law
because they accept the underlying social mores, then acceptance of social mores is not a good
predicator of lawful behavior. This is to account for individuals, like the mentally ill, who have

215

See Hawkins-Leon, supra note 113, at 402 (referring to reform measures taken by
states to make the insanity defense less attractive by shifting the burden of proof to the
defendant); see generally U.S. Const. amend. X.
216

The Anglo-American legal system has always operated on the premise that laws are
created by man to enforce social norms. See Clayton A. Hartjen, Crime and Criminalization, 3335 (1974) (quoting legal scholar Roscoe Pound’s model of law as resolving the conflicting
interests of different members of society by establishing a code of conduct).
217

See id. at 33 (quoting sociologist Edwin H. Sutherland as having said that “when the
mores of a society are adequate, laws are unnecessary; and when the mores are inadequate, laws
are useless,” by which he meant that unless laws are consistent with the mores of society, they
will not be obeyed by anyone. Edwin H. Sutherland & Donald R. Cressey, Principles of
Criminology 11 (7th ed. 1966).
218

An article in Georgetown Law Journal co-written by a law professor and a
psychologist challenges the assumption that punishment increases compliance with the law. The
two argue that the factors which cause individuals to violate social norms are more powerful
than the deterrent effect of what a contemporary society would consider reasonable punishment.
Paul H. Robinson & John M. Darley, The Role of Deterrence in the Formulation of Criminal
Law Rules: At Its Worst When Doing Its Best, 91 Geo. L.J. 949, 950-51 (2003). Robinson and
Darley first track the repeated justification for punishment as deterring crime, and then refer to
scientific research that “suggests that both social influence and internalized norms are powerful
forces governing individual conduct, even more powerful than the threat of official conviction
and punishment by the criminal justice system.” Id. at 981 nn.159-62.
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J. Bard “Incarceration of Individuals with Serious M ental Illness”

less than full capacity to either recognize or conform their behavior to social norms.219 Robinson
and Darley conclude that “the infrequency of being able to achieve a meaningful deterrent effect
through doctrinal manipulation reveals that the deterrent-analysis tradition of modern criminal
law scholars, judges, and lawmakers is seriously out of touch with the reality of its
limitations.”220
B. How Do We Decide What Is Criminal?
Is the conduct we designate as criminal based on a normative judgment of what behavior people
should or should not be able to control? Is it necessary to assume we are all equally resistant to
the urge to kill a cheating spouse in order to make it a crime to do so? Does it matter that some
people have less difficulty conforming their conduct to these laws than others? Should this make
a difference in our reasons for having these laws? Should the requirement to obey the law be
based on an individual assessment of how difficult that will be? At the most basic level, we do
recognize that humans kill each other, and we have decided that this killing is in most
circumstances incompatible with an ordered society.221 We also realize that there is a difference
between humans who kill randomly and those who kill based on provocation. The fact that Clara
Harris, the dentist in Houston who ran over her unfaithful husband, was convicted of murder did
not mean the jury did not understand the urge to kill an unfaithful spouse.222 It did indicate a
decision by society to require a uniform level of impulse control regardless of an individual’s
specific temptation to act, so long as there is an intact thought system. It does not matter how
much you want to kill your husband - what matters is whether you know that you are, in fact,
killing a human. Believing that the man you are running over is a robot duplicate of your
husband, sent by your enemies to kill you (not a belief of Clara Harris223) demonstrates a lack of
knowledge that you are killing a human, and has been termed by scholars as a “negative”

219

Robinson and Darley note that “the insane offender provides a unique opportunity for
the law to make clear just how serious it is about punishing a violation” in that such a
punishment would be saying to the public that “‘if the law sanctions even an insane offender,’ it
might be understood as saying, ‘make no mistake that it will sanction if you commit this
offense.’” Id. at 973 n.136.
220

Id. at 1001.

221

Cf. Anthony N. Bishop, The Death Penalty in the United States: An International
Human Rights Perspective, 43 S. Tex. L. Rev. 1115, 1231 (2002) (concluding, inter alia, that
“civil society ... must progress beyond killing in order to prove that killing is wrong.”).
222

See Nick Madigan, Woman Who Killed Spouse With Car Is Guilty of Murder, N.Y.
Times, Feb. 13, 2003, at A20 (providing an overview of the Clara Harris case)
223

Cf. id. (examining, inter alia, Clara Harris’ motives and state of mind).
47

J. Bard “Incarceration of Individuals with Serious M ental Illness”

insanity defense.224
C. What Is the Role of Irresistible Impulse?
There is a big difference between not knowing you are killing a man and being unable to stop
yourself because of forces beyond your control. This concept is recognized in insanity defense
law as a “positive” insanity defense, and is encapsulated in the concept of an irresistible
impulse.225 Some states’ insanity laws permit exemption from criminal responsibility if the
criminal act is provoked by an irresistible impulse.226 Such language does not answer the
question of what constitutes an irresistible impulse, or what the role of irresistible impulse is in
the insanity defense, and whether such an ability to resist varies from person to person. By
studying decisions which identify instances of irresistible impulse, we can see that the ability to
resist is evaluated on how that impulse might be impaired by mental illness.227 In other words,
the acts of the defendant are compared with those of a hypothetical “normal” person who is not
affected by mental illness. In making these determinations, courts are thrown back onto the
question of who is qualified to assess whether a specific provocation was irresistible to a specific
person based on the extent of that person’s enjoyment of “normal” mental health. The obvious
dissatisfaction with the process of designating certain professionals as “experts” is expressed in
the constant complaint that the insanity defense has become a battle of the experts.228 This
complaint is evidenced by the contention that there is no satisfactory basis for any expert to
know, with any degree of reasonable certainty, what is or is not within an individual’s capacity
to resist, and to what extent that capacity is impaired by mental illness.
To consider the concept of “capacity to resist” is to open the door to one of mankind’s

224

Cf. Marlene Atardo, Defense of Mistake of Fact in Rape Prosecution, 102 A.L.R. 5th
477, at 10 (2003) (noting that mistake of fact can be considered a negative defense).
225

See Dressler, supra note 125, 25.04(B)(2)(a).

226

Id. (citing Parsons v. State, 2 So. 854, 866 (Ala. 1887)).

227

Parsons, 2 So. at 863-64.

228

Christopher Slobogin states that “the psychiatric testimony elicited by the insanity
defense has been characterized as time-consuming, confusing, and ‘farfetched.’ To the public,
this is perhaps the most galling aspect of the defense; many who find fault with the outcome in
Hinckley are particularly critical of the prolonged battle of the experts waged during the trial.”
Christopher Slobogin, The Guilty But Mentally Ill Verdict: An Idea Whose Time Should Not
Have Come, 53 Geo. Wash. L. Rev. 494, 515-16 (1985). See also Katherine A. Drew,
Diminished Capacity as a Result of Intoxication and Addiction: The Capacity to Mitigate
Punishment and the Need for Recognition in Texas Death Penalty Litigation, 5 Tex. Wesleyan L.
Rev. 1, 14 (1998).
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J. Bard “Incarceration of Individuals with Serious M ental Illness”

unresolved issues. Discussing the origins of religion in human society, Sigmund Freud wrote that
“the formation of a religion, too, seems to be based on the suppression, the renunciation, of
certain instinctual impulses.”229 Does man have any control over his actions, or are they all
predetermined? Is ability to control behavior a reflection of a person’s inherent worth? From
where does the ability of a “good” person to control his behavior come? We cannot hope to
resolve these questions through the legal system on any but the most functional levels. Unless
we choose to live in total anarchy or in strict totalitarianism - where one individual has complete
authority to make all decisions - we must reach some sort of agreement about how to
characterize and respond to behavior recognized as a threat to the safety and well-being of our
society. Just because any decision we make will not be completely responsive to the needs of
each individual does not make the process unfair.
If we can accept the fact that people have varying abilities to conform their behavior to what
society determines to be the necessary rules of conduct, then we can see the necessity of
interfering with the liberty rights of those who violate these rules without the need to see these
violators as less than human. We cannot set someone loose in society if he tends to lose his
temper so easily that he is a threat to the public, and this does not mean we cannot see him as
sick. This hardly requires a retooling of current practices: For example, would we have trouble
permitting chemotherapy for a bank robber with leukemia while imprisoned? Probably not.
Society also understands that a person’s ability to conform their behavior to the law may be so
compromised by disease or injury that he must be confined. We do not consider this confinement
to be punishment for disease; although, given the history and current status of the conditions
under which the mentally ill are confined, it is sometimes difficult to perceive any difference
between confinement and punishment.
VIII. How Does Society Assess Criminal Responsibility?
A review of historical and present day approaches to assessing the criminality of the mentally ill
reveals that all such efforts are based on society’s answers to the fundamental underlying
question of how to assess responsibility. No contemporary discussion of free will is complete
without reference to the work of Professor Stephen J. Morse.230 Although it would be impossible

229

Davida A. Williams, Punishing the Faithful: Freud, Religion, and the Law, 24 Cardozo
L. Rev. 2181, 2218 n.83 (quoting Sigmund Freud, Obsessive Actions & Religious Practices 125
(James Strachey ed., 1924)).
230

See, e.g., Stephen J. Morse, Culpability and Control, 142 U. Pa. L. Rev. 1587, 16011606 (1994). Here, Professor Morse reviews the scholarship on free will, and concludes that it is
not useful to base criminal responsibility on whether or not an individual could control his
actions; he holds out that, short of external force or involuntary muscular contraction, most
people are in physical control of their actions. The issue, he explains, is under which
circumstances a person’s mental status absolves him of responsibility for acts which he
49

J. Bard “Incarceration of Individuals with Serious M ental Illness”

to do justice to the depth of Professor Morse’s thinking and scholarship on the topic of free will
and responsibility, his work explores what it means for humans to be held responsible for
choices they make.231 Two more scholars - Professor Elyn Saks and Dr. Stephen H. Benke address in their book Jekyll on Trial: Multiple Personality Disorder and Criminal Law the role of
responsibility by considering the paradigm of the person who has more than one distinct
personality.232 Is it just, they ask, to hold several distinct personalities responsible for criminal
acts committed by only one of them?233 This resurgence of negative attention inspired social
scientists to research public opinion about the insanity defense.234 Research found that jurors
who were more likely to accept the death penalty were less likely to believe an insanity defense
because “[a] physical disorder may be seen as external to the person, creating a sort of necessity
or duress, but a purely mental disorder may be seen as simply another manifestation of a weak or
corrupted character.”235 Professor Robert Burt elegantly identifies the terror invoked by the
criminally insane.236 He writes that people view the “criminal-insane” as “a violent madman who
cannot rationally be dissuaded from his conduct by application of sanctions, and whose
consequent unpredictability is a constant, erratically terrifying threat to our sense of communal

committed of his own volition. Id.
231

Id. at 1587 (“If it is true that an agent really could not help or control herself and was
not responsible for the loss of control, blame and punishment are not justified on any theory of
morality ...”).
232

See generally Elyn R. Saks with Stephen H. Behnke, Jekyll on Trial: Multiple
Personality Disorder and the Law (1997); see also D.O. Lewis & Jennifer S. Bard, Multiple
Personality and Forensic Issues, Psychiatric Clinics of N. Am., Sept. 1991, at 741-56 (arguing
that when a single human body with only one brain contains several personalities who can act
without each other’s knowledge, then it is reasonable to consider that all personalities within that
body are suffering from severe mental impairment and are not responsible for their actions).
233

Saks, supra note 232, at 5.

234

See generally Cirincione, supra note 116, at 165-76. Contemporary study of the
insanity defense is aided by considerable empirical scholarship. Id. The foundational study was
done by Arafat and McCahery, who found in a survey of 450 prospective jurors that the
individuals’ educational and socioeconomic background influenced their attitude toward
psychiatry thus affected their decisions to find defendants NGRI. Id. Dr. Cirincione notes that
this may be an explanation of why so many bench trials result in acquittals: because highly
educated individuals, such as judges, have a more positive attitude towards psychiatry. Id.
235

Perlin, Borderline, supra note 114, at 1398.

236

See Robert A. Burt, Of Mad Dogs and Scientists: The Perils of the “Criminal-Insane,”
123 U. Pa. L. Rev. 258, 262-63 (1974).
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order.”237
Such findings are used by contemporary scholars to refute what Michael Perlin calls the “myths”
about the insanity defense.238 One prevalent myth is that the insanity defense is primarily used in
murder cases.239 While the public pays the most attention to the insanity defense in murder cases,
many, if not most, crimes committed by the mentally ill are not murders.240 In fact, murder cases
make up less than one-third of the situations where insanity is used as a defense.241 An eight-state
survey showed that only 14.8% of defendants raising the insanity defense were charged with
murder.242 This misperception about the insanity defense is as common among attorneys as it is
in the general public. A survey of clinicians “found that 80% believed that the insanity defense
[was most frequently used for murder cases.]”243
Another widely held myth is that the insanity defense is used frequently as a last resort for those
who have no other defense.244 Actually, statistics show that it is invoked rarely and with
caution.245 No lawyer, whether defense counsel or prosecutor, wants to put forward a meritless

237

Id. at 263.

238

See Perlin, Unpacking, supra note 80, at 648-53 (citing the development of seven
myths in the wake of the Hinckley verdict); see generally Lisa A. Callahan et al., The Volume
and Characteristics of Insanity Defense Pleas: An Eight-State Study, 19 Bull. Am. Acad.
Psychiatry & L. No. 4 331-38 (1991) (studying the characteristics of individuals who plead
insanity).
239

Perlin, Unpacking, supra note 80, at 649.

240

See LaFond & Durham, supra note 198, at 93-94 n.106 (stating that offenders found
NGRI have been charged with relatively minor offenses such assault, drug use, shoplifting, or
property offenses).
241

Perlin, Unpacking, supra note 80, at 649.

242

Callahan et al., supra note 238, at 337.

243

Harry J. Steadman, et al., Factors Associated With a Successful Insanity Plea, 140 Am.
J. Psychiatry 401, 401-03 (1983).
244

James F. Hooper & Alix M. McLearen, Does the Insanity Defense Have a Legitimate
Role?, 19 Psychiatric Times 4 (2002), available at
http://www.psychiatrictimes.com/p020452.html (last visited Mar. 2, 2005).
245

Id. (the authors conclude that “the insanity defense is used in less than 1% of criminal
proceedings and is successful in approximately one-quarter of those cases.”).
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J. Bard “Incarceration of Individuals with Serious M ental Illness”

argument. Opponents of the insanity defense sometimes claim that acquittals based on insanity
are the result of a jury confused by expert testimony.246 Actually, over half of insanity acquittals
are awarded by judges at bench trials.247 A study of 7,299 uses of the insanity defense in seven
states showed that only 14.4% of the cases were tried by a jury.248 Instead, 42.7% were tried by
judges and 42.9% resulted in plea bargains.249 Furthermore, three-quarters of the cases tried to
juries resulted in a conviction and 76.8% of all insanity acquittals followed trial by a judge
alone.250 Professor Cirincione theorizes that the large number of bench trials reflect prosecutors’
decision to proceed with adjudication even when they do not intend to contest the defendant’s
insanity defense.251 Moreover, although it is the cases where there is disagreement with an
insanity verdict which get publicity, an Oregon study of individuals acquitted under the insanity
defense found prosecutors agreed to the insanity verdict in more than four out of every five
cases.252 The public is equally misinformed about the insanity defense.253 Research shows that
not only is the insanity defense rarely invoked, it is even more rarely successful.254 Other studies
have shown that looking at all kinds of cases, the insanity defense is raised in less than 1% of all
felony cases and is successful only 15% to 25% of the time.255
The fear of the insanity defense most exploited by the prosecution is that an acquittal will lead
directly to a dangerous person being released into society to commit further crimes.256 A recent
review of the literature concluded, consistent with past studies, that NGRI defendants often
246

See Cirincione, supra note 116.

247

Id. at 175.

248

Id. at 167.

249

Id.

250

Cirincione, supra note 116, at 168.

251

Id. at 175.

252

Jeffrey L. Rogers et al., Insanity Defenses: Contested or Conceded? 141 Am. J.
Psychiatry 885, 887 (1984).
253

See LaFond & Durham, supra note 198, at 92-93.

254

Harry J. Steadman, et al., Factors Associated with a Successful Insanity Plea, 140 Am.
J. of Psychiatry 401, 401-03 (1983).
255

Borum & Fulero, supra note 186, at 120.

256

See LaFond & Durham, supra note 198, at 95-96 (arguing that these changes have not
made a difference in outcomes for individual defendants).
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J. Bard “Incarceration of Individuals with Serious M ental Illness”

served longer sentences or more time than they would have for a criminal conviction.257 This
follows because individuals found NGRI are committed to mental institutions until they are
“well,” even if this extends their confinement far beyond the longest possible criminal sentence
for their acts.258 Nevertheless, research supports that those actually found NGRI face long,
indeterminate periods of incarceration without benefit of parole.259 Studies show that the public
perception of a revolving door between the hospital and the free world is not true when it comes
to defendants acquitted by reason of insanity.260 Dr. Howard Zonana of Yale Medical School, the
president of the American Academy of Psychiatry and the Law, commented on new laws in
Connecticut that extended civil commitment for those found NGRI, saying, “[You’ve] got to be
crazy to take insanity defense.”261
Many states have elaborate procedures for transferring custody of defendants from the criminal
system to the mental health system when they are acquitted by reason of insanity.262 The
Supreme Court facilitated quick transfers by holding that a state need not prove a person found
NGRI dangerous by clear and convincing evidence as would normally be the case in depriving
an innocent person of his liberty.263 The Court has also held that a defendant found NGRI cannot

257

Borum & Fulero, supra note 186, at 120.

258

See LaFond & Durham, supra note 198, at 95.

259

Borum & Fulero, supra note 186, at 120.

260

See Joseph H. Rodriguez et al., The Insanity Defense Under Siege: Legislative
Assaults and Legal Rejoinders, 14 Rutgers L.J. 397, 402-04 (1983) (noting that NGRI
defendants are released only with judicial oversight and not until they no longer pose a danger to
themselves or others) .
261

John P. Martin, The Insanity Defense: A Closer Look, Wash. Post, Feb. 27, 1998,
available at http://www.washingtonpost.com/wp-srv/local/longterm/aron/qa227.htm (last visited
Mar. 2, 2005).
262

See David S. Wisz, States’ Right to Confine “Not Guilty By Reason of Insanity”
Acquittees After Foucha v. Louisiana, 82 Ky. L.J. 315, 335-45 (1993) (describing differing
procedures amongst states for transferring custody); see also LaFond & Durham, supra note 198,
at 87 (noting that states can “criminally commit mentally ill offenders to secure psychiatric
facilities indefinitely ... because the insanity verdict proved that they were mentally ill and
dangerous - even if their crime had been a minor property offense”).
263

Jones v. United States, 463 U.S. 354, 369-70 (1983). The Court authorized indefinite
confinement of insanity acquitees even if this confinement exceeded the time of any possible
sentence because “there simply is no necessary correlation between severity of the offense and
length of time necessary for recovery.” Id. at 369.
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J. Bard “Incarceration of Individuals with Serious M ental Illness”

be incarcerated beyond the time they have regained sanity.264 One of the reforms most commonly
proposed by those who seek to widen the use of the insanity defense is to inform jurors what will
happen to the defendant if he is found not guilty.265
IX. What Justifies Lowering the Standard of Responsibility?266
If the answer to assigning responsibility is not in diagnosis, we are left with the fundamental
question of what justifies lowering the standards for an individual’s responsibility for his actions.
The basis of the criminal justice system in the United States rests on holding people liable for
their intentional actions, a concept referred to as mens rea.267 Usually translated as “guilty

264

Foucha v. Louisiana, 504 U.S. 71, 86 (1992). See Bruce J. Winick, Ambiguities in the
Legal Meaning and Significance of Mental Illness, 1 Psychology, Pub. Pol’y & L. 534, 536-37
(1995) (analyzing Foucha from a mental health perspective, Winnick argues that Foucha has
implications for both civil and criminal commitment, because simply having a diagnosable
mental illness associated with violence is an insufficient reason to commit either a criminal who
is no longer insane or any individual who is not a present danger to himself or others).
265

That is, given the lack of mental health resources in the community, there is every
likelihood that stability achieved under treatment while civilly committed will not be maintained
in the free world.
266

See George Ainslie & John Monterosso, Will as Intertemporal Bargaining:
Implications for Rationality, 151 U. Pa. L. Rev. 825, 859-60 (2003) (exploring the concept of
excusing some people for behavior they claim to be unable to control, and expressing the
concern that “classifying behaviors as involuntary based on the presence of a physiological
antecedent could eventually bring to full fruition the old maxim that ‘to understand all is to
forgive all,’ and thereby undermine criminal deterrence generally”). See also Leonard V. Kaplan,
Shame: Bergman on Responsibility and Blame, 68 Brook. L. Rev. 1159, 1165-66 (2003).
Through an analysis of the movie Shame (Lopert Pictures Corp. 1968), Professor Kaplan
explores how society’s views of responsibility affect the system of laws, positing that the
concepts of criminal and civil liability are based on a deeper, perhaps hidden, belief on what
citizens owe to society and to each other. Id.
267

There is a broad, fascinating literature on the concept of what the word “intent” means
in the context of criminal law as it relates to mental culpability. For further discussion of the
issue see Deborah W. Denno, Crime and Consciousness: Science and Involuntary Acts, 87 Minn.
L. Rev. 269, 272-73 (2002) (reviewing legal and psychological understanding of what
characterizes a voluntary act as opposed to one over which a person has no control); see
generally Eunice A. Eichelberger, Annotation, Automatism or Unconsciousness as Defense to
Criminal Charge, 27 A.L.R. 4th 1067 (1984) (analyzing cases in which automatism was used as a
defense).
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J. Bard “Incarceration of Individuals with Serious M ental Illness”

mind,”268 mens rea reflects the concern that unlike early concepts of criminal law that were based
solely on acts, modern Anglo-American law is concerned with intent.269 For example, presentday Americans see it as self-evident that the woman who kills her husband by backing over him
in the car because she did not know he had fallen asleep while changing a tire bears a different
level of responsibility from Clara Harris, who followed her husband to a hotel where he was
meeting another woman and proceeded to run over him three times in the parking lot despite the
horrified cries of onlookers, including her stepdaughter.270 While we hold a woman backing over
her sleeping husband to some standard of reasonable care in order to foster the public good of
looking behind the car before backing out, we would not charge her with capital murder and
sentence her to life in prison.271
The case of Clara Harris is a good example of the fundamental problem we need to resolve
before we can hope to develop a justifiable insanity defense: When determining criminal
culpability, what does society believe about mental illness that is not caused by organic
neurological abnormalities? Neuroscientists report a wide array of external experiences that may
leave their traces on the brain, and society seems to understand this.272 We believe that a prisoner
of war who went through torture and deprivation may never be the same person he was prior to

268

Black’s Law Dictionary 999 (7th ed. 1999).

269

See Dressler, supra note 125, 10.01 (noting “the existence of mens rea as a prerequisite
to criminal responsibility”). See also Nusbaum, supra note 14, at 1521-25 (discussing intent).
270

E.g., Saturday Today (NBC television broadcast, Feb. 8, 2003), available at LEXIS,
News Library, Nbcnew File.
271

Tex. Penal Code Ann. 19.03 (Vernon 2004). Capital murder is the highest degree of
murder in Texas and makes the defendant eligible for the death sentence. Id. 12.31. See Laura
Elder, Jury Gets Harris Case, Galveston County Daily News, Feb. 13, 2003. Clara Harris was
represented by George Parnham - the same attorney who had represented Andrea Yates a year
earlier - who advocated for an insanity defense because Harris was so distraught by her
husband’s infidelity and devaluation of her as a person that she lacked the normal ability of a
wronged spouse to seek justice through the divorce courts. Id. See also Allan Turner, Harris
Legal Defense Strategy Wins Praise: But Multipronged Approach Not Enough for Acquittal,
Hous. Chron., Feb. 14, 2003, at A33 (observing that the jury rejected this defense and also did
not consider the evidence of insanity strong enough to support a lesser conviction of
manslaughter).
272

See generally Harvey M. Weinstein et al., Torture and War Trauma Survivors in
Primary Care Practice, 165 W. J. Med. 112-17 (Sept. 1996),
http://www.survivorsintl.org/info/primarycare.html (last visited Mar. 2, 2004) (discussing torture
and noting that both “physical and psychological torture may result in long-term” pathological
conditions).
55

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the torture.273 Even understanding that these changes cannot be reduced to universal laws of
cause and effect, but rather differ according to the psychological characteristics of each
individual, does not negate their existence.
Anyone who lived through the events of September 11, 2001, has changed their views about the
world and safety. Does this constitute a medical diagnosis of paranoia? Can we see our changed
reactions to a fidgety passenger on an airline as analogous to how a person who was tortured
might see a situation as threatening, even if it was one others could dismiss? Are we mentally
ill? Is a formerly abused child mentally ill? Is either of us less responsible for our actions? Do
we have less control over what we do than others who have not had our experiences? To enter
into this line of thought is to see its complexity.
The point of this thought experiment is to bring to light the reality that what society chooses to
designate as behavior for which an individual is or is not responsible is an artificial artifact
signaling how we choose to order our society. It is not the law of nature, but the law of man that
assesses the level of responsibility of a person who drives up on a sidewalk and kills a child.274
We may determine whether that person was suffering from a heart attack the day after getting a
clean bill of cardiac health, suffered from impaired vision due to longstanding macular
degeneration, or was distracted by a dog crossing the road, but to make that determination does
not lead inevitably to an assessment of responsibility. It is still a matter of societal intent whether
to view the act purely by its results - a child is dead - or to establish a hierarchy of
responsibility.275 Should a person who knows that his vision is impaired not be held completely
responsible for damage done while driving a car? Was it not his choice to drive? Moreover, it is
society’s decision to determine the consequences after it has assessed responsibility. Should the
driver be jailed? Fined? Have his license taken away? Is the child any less dead because the
distraction was unexpected, as with a dog running across the road? Would the roads be safe if
there were no consequences for anything but intentional injuries? The point to these questions is
not that there is one set of answers better than another, but that they represent societal choices
just as the designation of responsibility for crimes committed by the mentally ill are societal
choices.
X. What Are the Goals of Imposing Criminal Penalties on People with Mental Illness?
273

See id.

274

See generally Bernadette McSherry, Epilepsy, Automatism, and Culpable Driving, 21
Med. & L. 133, 134 (2002) (describing an incident involving an individual who experienced an
epileptic seizure while driving and was charged with manslaughter for the resulting fatal car
accident).
275

Id. at 143-44 (stating that “Cases imply that a person’s actions in an epileptic seizure
are involuntary because they lack intention and a person should not be found criminally
responsible for any accident that may occur as a result of involuntary conduct”).
56

J. Bard “Incarceration of Individuals with Serious M ental Illness”

A. What Do We Believe Is the Origin of Mental Illness, and What Is Its Effect on Human
Behavior?
It is my belief that without a societal consensus on the following - what constitutes mental
illness; what evidences such illness; what effect such illness has on behavior; and whether, once
having suffered from its effects, one can be free of it - it is not possible to develop an effective
law to adjudicate the mentally ill who commit criminal acts. If contemporary American society
shares the belief of post-McNaughton Victorian England that only those who do not know what
they are doing can be exempted from criminal responsibility, then we need to acknowledge that
individuals will be responsible for their actions unless they demonstrate this lack of awareness.276
Such a belief is not the same as an appreciation of mental illness as a continuum, because it only
recognizes mental illness that takes the form of blocking awareness. It is for this reason that
measures like the “guilty but mentally ill” verdict are inherently unsatisfactory to those who see
mental illness as having a wide-ranging impact on human behavior.277 If society does not believe
that anything but complete incapacity excuses criminal behavior, then mental illness which does
not cause complete unawareness of external reality is not relevant to a determination of guilt. In
this sense, the obligation to recognize mental illness and provide treatment in prison is no more
than the obligation to recognize hypertension and provide treatment in prison. The basis is the
Eighth Amendment of the Constitution, not the Sixth.278
If one of the most effective arguments against the insanity defense is the fear that a dangerous
person will be released, then this fear must be based on a distrust of medicine’s ability to treat
and recognize mental illness or society’s ability to confine the dangerous.279 The practices of
prosecutors and juries in other areas of criminal law suggest that this fear is not a trivial factor
even in the era of “supermax” prisons.280 For example, one of the most effective arguments in

276

See Dressler, supra note 125, at 25.04(c)(1)(a)-(b).

277

See generally id. 25.04.

278

U.S. Const. amend. VI; U.S. Const. amend. VIII; see also Estelle v. Gamble, 429 U.S.
97, 104 (1976) (establishing that deliberate indifference to prisoners’ health care needs violated
the 8th Amendment).
279

See generally Thomas L. Hafemeister & John Petrila, Treating the Mentally Disordered
Offender: Society’s Uncertain, Conflicted, and Changing Views, 21 Fla. St. U. L. Rev. 729
(1994).
280

E.g., J.C. Oleson, Comment, The Punitive Coma, 90 Cal. L. Rev. 829, 860 (2002)
(asserting that “the modern prison, whether a warehouse prison (full of caged men left idle) or a
supermax prison (consisting of men confined in tiny, isolated cells) is an ineffective social bandaid on an unstaunchable social problem.”).
57

J. Bard “Incarceration of Individuals with Serious M ental Illness”

favor of the death penalty is that it eliminates the possibility that the criminal will ever reenter
society.281 Because the alternative to the death penalty is a life sentence, a jury’s vote for the
death penalty indicates a distrust of the parole system and the citizens who will evaluate the
possibility of the defendant’s release in the future.
As outlined above, without an agreed-upon understanding of how mental illness affects behavior,
there can be no successful efforts to draft a just policy.282 Using a medical model to describe
mental illness shows that it makes no more sense to offer treatment rather than punishment to the
most severely affected by mental illness than it would for an insurance company to only pay for
the chemotherapy of patients whose cancer had spread out of control. By imposing criminal,
determinate sentences on people whose tendency toward criminal behavior is no more voluntary
(and no less treatable) than a diabetic’s tendency to go into hypoglycemic shock, while offering
few extremely ill individuals the opportunity to rejoin society after treatment, we abandon the
basic tenets of fairness that underlie the Anglo-American principle of holding people responsible
for their actions according to their capacity to understand and obey society’s rules.
In order to see how mental illness is both the same as, yet, in an important way, different from
physical illness, it is helpful to remember that it is entirely ordinary for prisoners with chronic
illnesses to remain ill throughout their sentences, receive necessary care in prison, and be
released with the same illness.283 The difference here is how the presence of the illness at the
time of the criminal act affected that individual’s ability to navigate society’s rules. Further, it is
not necessary to determine the effect unless there is a shared belief that the act would not have
been done but for the illness. Therefore, the individual should have the opportunity to be treated
and released rather than be incarcerated. Although the presence of large numbers of the mentally
ill in prison relieves the problem, the relevant issue is not so much care of the mentally ill in
prison as it is the disposition of individuals who committed crimes while mentally ill.

281

See Dressler, supra note 125, at 6.05(B).

282

Perlin, Unpacking, supra note 80, at 622-24 (citing Stanley Ingber, A Dialectic: The
Fulfillment and Decrease of Passion in Criminal Law, 28 Rutgers L. Rev. 861, 911 (1975)).
Perlin writes that “since the first emergence of the concept of individual responsibility, the
tension between a purportedly free-will based legal system and a purportedly deterministicallydriven scientific or psychodynamic system has been the critical obstacle to the development of a
coherent insanity defense doctrine.” Id. at 623-24. See supra nn.34, 104, 125, 230 and infra
n.319 for a review of writings on the symbolic relationship between the insanity defense and the
question of free will.
283

Cf. William B. Aldenberg, Note, Bursting at the Seams: An Analysis of
Compassionate-Release Statutes and the Current Problem of HIV and AIDS in U.S. Prisons and
Jails, 24 New Eng. J. on Crim. & Civ. Confinement 541 (1998) (analyzing compassionate
release statutes relating to HIV-positive inmates).
58

J. Bard “Incarceration of Individuals with Serious M ental Illness”

B. A More Detailed Review of the Andrea Yates Case
In considering what society expects from the insanity defense, it is useful to consider again, this
time in detail, the highly publicized Andrea Yates case.284 Yates, a 35-year-old nurse, woke up
one morning, saw her husband off to work, and proceeded to systematically drown each of her
five children in the bathtub.285 The children’s ages ranged in age from six months to seven
years.286 She then laid each child on her bed and telephoned the police.287 When the police
arrived, they initially found her to be completely calm.288 She explained exactly what she had
done and how she had done it.289 She told the officers on the scene that she expected to be taken
to prison.290 Her expectations were correct: She was taken to jail and charged with capital
murder, which made her eligible for the death penalty, and she was subsequently convicted and
sentenced to life in prison.291
Almost immediately after the first news of the murders reached the public, her family alleged
that she had been deeply depressed and mentally ill since the birth of her youngest child.292
Based on these early reports, Andrea Yates’ name has become tightly linked to post-partum

284

See Andrea Yates, at http://www.cnn.com/SPECIALS/2001/yates/ (last visited Mar. 2,
2005). See generally O’Malley, supra note 20; sources cited supra note 19.
285

S.K. Bardwell et al., Mom Details Drowning of Five Kids: Eldest Fled, Was Dragged
Back to Tub, Hous. Chron., June 22, 2001, at A1, available at LEXIS, News Library, Hchron
File; O’Malley, supra note 20, at 13-21.
286

Carol Christian, Jury Gives Yates Life Term with No Parole for 40 Years, Hous.
Chron., Mar. 16, 2002 at A1, available at LEXIS, News Library, Hchron File [hereinafter
Christian, Life Term]; O’Malley, supra note 20, at 4.
287

Bardwell, supra note 285; Mike Glenn et al., Mom of Five: “I Killed My Kids”:
Children May Have Died in Tub, Hous. Chron., June 21, 2001, at A1, available at LEXIS, News
Library, Hchron File; O’Malley, supra note 20, at 1-4.
288

See Carol Christian, Yates Gave Few Hints in 911 Call: Mom Didn’t Say Kids Were
Killed, Hous. Chron., Dec. 8, 2001, at A37, available at LEXIS, News Library, Hchron File;
O’Malley, supra note 20, at 4-5.
289

See Bardwell, supra note 285, at A1; O’Malley, supra note 20, at 13-21.

290

O’Malley, supra note 20, at 19-21.

291

E.g., Christian, Life Term, supra note 286; O’Malley, supra note 20, at 212.

292

Bardwell, supra note 285; O’Malley, supra note 20, at 59-60.
59

J. Bard “Incarceration of Individuals with Serious M ental Illness”

depression and has triggered a torrent of commentary and scholarship about this condition.293 By
the time of trial, the jury was presented with substantial evidence of a long history of Yates’
serious mental illness, including many hospitalizations.294 Although no one denied that postpartum depression was a factor in her condition, or that this condition can lead to mothers killing
their children, her defense was based on a global claim of long-term mental illness. At no time
did or could the prosecution deny Yates’ medical history.295 However, they did argue that despite
the existence of severe psychotic depression at the time she committed the crime, Yates knew
what she was doing and knew it was wrong.296 Under Texas law, an individual can be found not
guilty by reason of insanity only if he or she lacked the knowledge that their action was
293

See Manchester, supra note 19, at 719 nn.45 & 49, 720 nn.52 & 56-57 (reviewing the
literature and case law on mothers who murder their babies soon after childbirth; arguing that the
existence of postpartum psychotic depression warrants a broadening of the insanity defense; and
reporting that although 25% to 85% of women have “postpartum blues” after giving birth,
approximately “0.2% of childbearing women will have psychotic episodes” (citing Velma
Dobson & Bruce Sales, The Science of Infanticide and Mental Illness, 6 Psychol. Pol’y & L.
1098, 1109 (2000)). See generally sources cited supra note 19.
294

O’Malley, supra note 20, at 137-212.

295

Christian, Life Term, supra note 286. The author noted that “prosecutor Joe Owmby
acknowledged at a post-trial news conference ... that he backed off a bit in his quest for the death
penalty. ‘We were as aggressive as the facts allowed,’ he said. ‘I didn’t think the facts warranted
asking the jury for the death penalty.’” Id. See also Jim Yardley, Mother Who Drowned Five
Children in Tub Avoids a Death Sentence, N.Y. Times, March 16, 2002, at A1, available at 2002
WLNR 4061821. Yardley wrote:
The punishment phase of the trial was notable for the passivity of Harris County
prosecutors, usually considered among the most aggressive in the nation. Months ago,
District Attorney Chuck Rosenthal had brushed aside criticism to pursue the death
penalty against Mrs. Yates. Yet during closing statements today, one prosecutor, Joe
Owmby, never asked jurors for a death sentence and almost seemed to be steering them
to vote for life.
Id. O’Malley, supra note 20, at 137-212.
296

Assoc. Press, Four Yates Jurors: Confession, Photos Key to Verdict, Wash. Post, Mar.
18, 2002, at A18.
The jurors said they started by considering what they found to be the most compelling evidence:
the videotaped confession to police and photographs of the children, alive and dead. “She was
able to describe what she did ... I felt like she knew exactly what she was doing, and she knew it
was wrong, or she would not have called the police,” said Roy, a math teacher. “A lot of people
want you to have sympathy for her and feel sorry for her,” said Roy... . “And that’s okay, but
you cannot forget those children.”
Id. O’Malley, supra note 20, at 173-201.
60

J. Bard “Incarceration of Individuals with Serious M ental Illness”

wrong.297 Yates’ painstakingly detailed account to the police and later to the psychiatrists
performing an evaluation of her awareness that she was drowning her children made it
impossible to convince a jury that she did not know that her conduct was wrong.298 Moreover,
Yates did not say that any force compelled her to kill the children other than her own belief that
they were destined to go to hell because of her failures in raising them.299 She believed that by
killing them immediately, she saved them from that fate.300 It was no surprise to anyone familiar
with Texas law that Yates was found guilty.301
The facts of the Yates case highlight why I argue that the insanity defense addresses only a
narrow segment of the mentally ill population.302 By all modern medical standards, Yates was
mentally ill.303 Her illness - severe depression with psychotic features - is among the most
amenable to pharmacological treatment.304 The consensus of lay and legal commentators alike is
that she should have been found not guilty by reason of insanity.305 Yet because Yates’ disease
did not manifest itself in the form of a cinematic state of delusion, and because she did not claim
a deific decree, her behavior was not excused.306 Because the legal standard in Texas307 is

297

Tex. Penal Code Ann. 8.01(a) (Vernon 2003).

298

See Dawn Fratangelo, The Jury Speaks: Jury Members Discuss Andrea Yates’ Trial,
Dateline NBC (NBC television broadcast, Mar. 17, 2002), available at LEXIS, News Library,
Nbcnew File.
299

See Swanson, supra note 140; O’Malley, supra note 20, at 153-54.

300

See O’Malley, supra note 20, at 152-53.

301

Id.

302

See Talk of the Nation, Interview with Jennifer Bard (National Public Radio broadcast,
Mar. 13, 2002) (discussing legal insanity and its relevance in the Yates case).
303

See Charles Krauthammer, Yates Guilty? No, She Lacked “Free Will,” Hous. Chron.,
Mar. 15, 2002, at 38, available at LEXIS, News Library, Hchron File.
304

Id.; see O’Malley, supra note 20.

305

See supra note 19 and accompanying text.

306

See generally Margaret E. Clark, The Immutable Command Meets the Unknowable
Mind: Deific Decree Claims and the Insanity Defense after People v. Serravo, 70 Denv. U. L.
Rev. 161 (discussing case outcomes of defendants who claim a deific decree, unlike Andrea
Yates); Edith C. Webster, Hearing God, Rockford Register Star, Apr. 10, 2004 at 3B, available
at 2004 WLNR 16406613; Editorial, A Tale of Two Crimes That End Differently: Andrea Yates
61

J. Bard “Incarceration of Individuals with Serious M ental Illness”

knowledge that one’s act was wrong, there was no opportunity for the jury to consider whether
mental illness could have impaired her thought process. The sympathy that Andrea Yates’
conviction generated has reopened public debate on the role of mental illness in criminal
responsibility and has provided an opportunity to review the state of the law.308
C. What is Society’s Goal in Punishing the Mentally Ill?
The most accessible evidence as to what the United States believes about the role of mental
illness in mitigating criminal responsibility is the contemporary use of the insanity defense. The
number of incarcerated individuals diagnosed with severe mental illness demonstrates that
evidence of mental illness alone is not sufficient to avoid criminal punishment.309 Theoretically,
confinement of a person found not guilty by reason of insanity, or committed under civil law, is
not supposed to be punitive, even if the confinement lasts a lifetime. In fact, both confinement
and commitment result in a total deprivation of liberty.310 Moreover, those defendants with a
diagnosed mental illness who are convicted, and therefore not found not guilty by reason of
insanity, are given punitive sentences. To make this distinction raises the question of what
society intends by imposing a prison sentence. Is it just the deprivation of liberty? Should there
be further discomfort and painful punishment built in? In a sweeping analysis of the insanity
defense following the Hinckley verdict, Professor Perlin writes that it is impossible to
understand why society assigns criminal responsibility to the mentally ill unless one first

and Deanna Laney Both Killed Their Children. Their Verdicts Show the Need for a Change in
State Law, San Antonio Express-News, Apr. 9, 2004, at 6B, available at LEXIS News Library,
Santex File; Rick Casey, Devils on the Head of a Pin, Hous. Chron. Apr. 7, 2004 at A17,
available at LEXIS News Library, Hchron File; Mike Von Fremd, Deanna Laney Mother Who
Stoned Children Found Not Guilty, (ABC News Transcripts, Apr. 5, 2004), available at LEXIS,
News Library, Abcnew File; Elizabeth Vargas, Texas Woman Kills Children, Found Innocent
Due to Insanity (ABC News Transcripts, Apr. 4, 2004), available at LEXIS, News Library,
Abcnew File. Compare the case of Yates with that of Deanna Laney, who was acquitted under
NGRI for stoning her two sons to death on instructions from God. Phil Magers, Analysis: Texas
Reviews Insanity Defense, United Press Int’l (May 7, 2004).
307

See Tex. Penal Code Ann. 8.01(a) (Vernon 2004).

308

See supra note 19 and accompanying text.

309

See Stavis, supra note 43, at 159-60.

310

See Jennifer L. Morris, Criminal Defendants Deemed Incapable to Proceed to Trial: An
Evaluation of North Carolina’s Statutory Scheme, 26 Campbell L. Rev. 41, 46 (2004).
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J. Bard “Incarceration of Individuals with Serious M ental Illness”

understands the role of punishment.311 He sees trials as “punishment ceremonies” that “stimulate
socialization through a process which involves the internalization of normative social behavior
rules.”312 In the same way, the standards a state utilizes to excuse criminal behavior are based on
who society believes is justly punished.313 Traditionally, the field of criminology identifies four
purposes of punishment: retribution, deterrence, rehabilitation, and confinement.314
1. Is Punishment Intended to be a Deterrent?315
The most common contemporary justification for imprisoning people is the deterrent effect on
the criminal himself or upon others who would be tempted to commit similar crimes.316
According to the deterrence theory, if a person is imprisoned for a period of time, he will think

311

Perlin, Borderline, supra note 114, at 1383. Perlin’s article offers a rich appreciation of
legal, political, anthropological, sociological and philosophical perspectives on the role
punishment plays in society.
312

Id. at 1385.

313

Id. English law before the 1500s did not attempt to determine the capacity to form
intent. Matthew T. Fricker & Kelly Gilchrist, Comment, United States v. Nofziger and the
Revision of 18 U.S.C. 207: The Need for a New Approach to the Mens Rea Requirements of
Federal Criminal Law, 65 Notre Dame L. Rev. 803, 813 (1990). Thus, a three-year-old child who
suffocated a younger sibling or a bull who trampled a passer-by could both face charges of
murder and be punished according to the law of murder. Biggs, supra note 113, at 84. It is a
relatively modern idea that although it is appropriate to confine the dangerous, it is wrong to
punish those who do not know or intend the consequences of their actions. 21 Am. Jur. 2d
Criminal Law 35 (2003).
314

See Hartjen, supra note 216, at 127-30 for an overview of the history of punishment.
Note particularly his discussion of how “banishment” of the criminal from society, whether
through confinement or actual transport out of the country, has played an important role in the
Anglo-American legal system.
315

See generally Robinson & Darley, supra note 218. Robinson and Darley argue that the
value of deterrence in decreasing crime is based on “the assumption that deterrence is relevant to
every aspect of criminal law doctrine.” Id. at 956. They also write that “deterrence is said by
some commentators to be the criminal law’s ‘primary purpose’ or its ‘core purpose.” Id. They
conclude that “criminal code commentaries, court opinions, legislative histories, and sentencing
hearing transcripts are full of the language of deterrence in justifying every manner of criminal
law rule and practice.” Id. at 957.
316

Id. at 954-56.
63

J. Bard “Incarceration of Individuals with Serious M ental Illness”

twice before committing a crime in the future.317 The prison sentence reifies the possibly hazy
reality of punishment.318 Since one of the primary reasons for fearing the mentally ill is that their
actions are not influenced by society’s sanctions, it would be reasonable to conclude that no
amount of actual punishment will deter the next impulse to do harm.319 The public appears not to
share the mental health community’s belief in scientific data supporting the effectiveness of
medical treatment for some forms of mental illness.320 Medication combined with therapy,
mental health professionals argue, can restore a criminal’s ability to perceive himself at risk of
317

Id. See also Donald A. Dripps, Fundamental Retribution Error: Criminal Justice and
the Social Psychology of Blame, 56 Vand. L. Rev. 1383, 1423 (2003) (observing that deterrence
is based on the theory that both the individual offender and other members of the community
will balance the consequences of committing a crime against receiving a punishment and thus
will be discouraged from committing the crime).
318

See Robinson & Darley, supra note 218, at 992-94 (stating that it is the actor’s
perception of the likelihood of his crime resulting in actual confinement which most influences
his decision whether or not the benefits of the crime outweigh the burdens of imprisonment).
319

See id. at 959-63 (discussing deterrence as a justification for punishing criminals even
though there can be no expectation that the mentally ill criminal would have acted differently in
light of those deterrence factors). The authors discuss the case of Regina v. Dudley & Stephens,
in which men cast adrift on a lifeboat avoided starvation only by killing and eating a weakened
cabin boy. Id. Acknowledging that the defendants would not have been able to act differently,
the judge still sentenced the men to death, declaring that “[A] man has no right to declare
temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for
the criminal to change or weaken in any manner the legal definition of the crime.” Id. See also
Matthew Jones, Note, Overcoming the Myth of Free Will in Criminal Law: The Impact of the
Genetic Revolution, 52 Duke L.J. 1031, 1048 n.96, 1053 (2003). Jones argues that “recent
advancements in the field of genetics [put] the free will foundation upon which the criminal
justice system is based in serious jeopardy,” and posits that genetics offers the type of biologybased evidence that judges seek in determining whether an individual is responsible for his
conduct. Jones also states that “most legal scholars, judges and policy makers ... intuitively give
greater credibility to the hard sciences (such as biology and chemistry) rather than the social
sciences.” Id. at 1048. Such “hard evidence” of impaired decisionmaking through genetic
abnormality, thus, is preferred over social science in finding a “justifiable excuse” for criminal
behavior. Id.
320

See Perlin, Unpacking, supra note 80, at 676-77, 713 (citing Diane Baldwin Bartley,
Note, State v. Field: Wisconsin Focuses on Public Protection by Reviving Automatic
Commitment Following a Successful Insanity Defense, Wis. L. Rev. 781, 784 (1986) and
observing that, “historically, it was believed that insanity was too easily feigned, that
psychiatrists were easily deceived by such stimulation, and that the use of the defense has thus
been ‘an easy way to escape punishment.’”).
64

J. Bard “Incarceration of Individuals with Serious M ental Illness”

unpleasant punishment.321 Moreover, press reports of individuals who go on violent crime
rampages after choosing to stop taking their medications weaken the argument that it is safe to
let an individual free simply because his symptoms have ceased during confinement.322 The
public’s fear of either medicine’s fallibility or a criminal’s cunning is at the heart of why it is so
hard to reform law and practice.323 The public, including the judiciary and the bar, simply do not
believe that it is possible to reduce a criminal’s propensity for violence to the same level as the
rest of free society over a long period of time.324 More importantly, even if they believe effective
321

Arguments that a criminal can be changed into a law abiding citizens through
appropriate interventions are described as “rehabilitation.” Hartjen, supra note 216, at 130-31.
Hartjen states that:
In the simplest sense, rehabilitation consists of some course of action directed to
transforming individuals into less undesirable, more complete and adequate, betterfunctioning social beings. As far as criminal correction is concerned, the minimal aim is
to make lawbreakers into law-abiders... . The goal of rehabilitation is to resocialize
offenders by building into them the motivation to obey the law... . If rehabilitation seeks
to deflect individuals from engaging in further illegal activity, it really makes little
difference whether this is accomplished by means of psychotherapy, incarceration, or
physical brutality... . In the end, the attitude societal members harbor toward the criminal
[is that] the criminal cannot be allowed to remain the kind of person he has been defined
as being.
Id.
322

Cf. Perlin, Unpacking, supra note 80, at 609, 648, 724-25, 727. In this article,
Professor Perlin further develops his argument that one of the core problems of developing a
rational method of applying the law to mentally ill offenders can be traced to the wide-spread
negative beliefs that the general public have about the mentally ill. These beliefs include that
most people with mental illness are faking their disease for personal gain, and of those who
really are ill, the crime they have committed is evidence that their illness is incurable and that
they are a danger to the public. Perlin argues that the lay public’s belief that they can, without
out the aid of medical testimony, tell who is mentally ill and who is not stands in the way of
providing appropriate standards to defendants who do not appear to the public as ill. Id. Perlin
writes that, “The lay public cannot simply use its intuitive ‘common sense’ about whether an
individual ‘looks crazy’ (based on a combination of media images, religious iconographs and
unconscious rationalizations) ... to effectively determine who is or is not criminally responsible...
. In short, for the insanity defense to be successful, the defendant must appear to be ‘mad to the
man on the street.’” Id. By negating the role of medical diagnosis in identifying the mentally ill,
the public excludes people who meet all current medical standards for serious or severe mental
illness. Id.
323

See id. at 713-14.

324

Id. at 684.
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J. Bard “Incarceration of Individuals with Serious M ental Illness”

treatments exist, they do not trust the medical profession to accurately identify good candidates
or, after treating them, to know whether or not the treatment has worked.325 Mental health
professionals and advocates for the mentally ill face the inherently impossible task of proving
that an individual who has committed a dangerous crime will not commit another one.326 A
person found NGRI and then treated for mental illness is not rendered incapable of crime.327
Even though a person found NGRI of the most bizarre and horrible crime may respond so well to
modern drug treatment that he meets all relevant tests of mental stability within months of
hospitalization, there is no socially acceptable way to guarantee that his violent urges will remain
under control.328
The Supreme Court’s abhorrence of preventive detention,329 which makes it extremely difficult
to deprive a person of liberty because of the potential to commit crime, does not seem to
translate into a reluctance to confine people with mental illness once they have committed a
crime.330 To analogize again to bodily illness, there is a substantial gap between how the public
views mental disease and physical disease.331 If one accepts a biological basis for behavior, there
is no more reason to think that a person with mental illness who has committed a serious crime is
any less amenable to medical treatment than a person who has a seizure while driving. Both

325

See id. at 677 (stating that “the law is convinced that psychiatrists are not better in
finding ‘it’ [mental illness] than are members of the lay public”).
326

See Perlin, Unpacking, supra note 80, at 729 n.618.

327

See, e.g., Burt, supra note 236, at 261. Professor Burt observed that treatments like
psychosurgery that purported to remove the capacity for crime would not necessarily be a good
thing. Id.
328

Jennifer L. Morris, supra note 310, at 46.

329

See Zadvydas v. Davis, 533 U.S. 678, 690-91 (2001) (stating that preventative
detention is only upheld when the individuals are extraordinarily dangerous and those detentions
are subject to strong procedural protections).
330

Id. at 782. See also Kansas v. Hendricks, 521 U.S. 346, 357 (1997) (stating that “it
cannot be said that the involuntary civil confinement of a limited subclass is contrary to our
understanding of ordered liberty); Hilton v. Braunskill, 481 U.S. 770, 782 (1987) (stating that
New Jersey law does not allow a state court to consider a defendant’s future dangerousness in
detention pretrial commitment).
331

See Michelle Parikh, Burning the Candle at Both Ends, and There Is Nothing Left for
Proof: The Americans with Disabilities Act’s Disservice to Persons with Mental Illness, 89
Cornell L. Rev. 721, 743 (2004).
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individuals have symptoms that make them a danger to society.332 The person with the seizure
may have epilepsy, a brain tumor, or a bad reaction to a medication, but the symptoms might be
tractable to medical management. It would seem unjust to take away the driving privileges of the
driver whose seizure was caused by epilepsy that can be controlled by medication. Indeed,
people do drive while taking anti-seizure medication.333 Yet there is no parallel hesitation to
incarcerate a person who commits a crime while suffering from a form of schizophrenia treatable
with highly effective anti-psychotics.334 In fact both people - the schizophrenic who has
committed a crime and the person who has had a seizure - may be able to manage their
potentially dangerous symptoms.335
Professor Abraham S. Goldstein, a noted scholar on the purposes of criminal law, writes that the
reason for requiring an action component to a crime is because the law “seeks to assure that the
evil intent of the man branded a criminal has been expressed in a manner signifying harm to
society; that there is no longer any substantial likelihood that he will be deterred by the threat of
sanction...”336 If punishment is not justified until it is too late for deterrence, then how can it be
justified if the individual is beyond deterrence either because of a lack of understanding, such as
mental retardation, or a will to commit an act that is stronger than any available punishment?
Andrea Yates, for example, was aware that murder was illegal, yet her reasons for drowning her

332

Cf. Bernadette McSherry, Epilepsy and Confidentiality: Ethical Considerations, 23
Med. & L. 133, 134 n.5 (2004) (observing that in some states, people whose mental or physical
infirmities make them a danger to the public must register if they are to drive). States have
different laws regarding the standards epileptics must meet in order to drive. Typically, these
include permission from a doctor and a six month seizure-free period. The web site of the
Epilepsy Association has links to the laws in all the states and also allows for comparison
between one state’s laws and another’s. Epilepsy Foundation, State Driving Laws, at
http://www.epilepsyfoundation.org/answerplace/Social/driving/statedrivinglaws.cfm (last visited
Mar. 2, 2005).
333

See, e.g., Fredrick Kunkle, Epileptic Man Pleads Guilty in Car Crash That Killed 4,
Wash. Post., Feb. 24, 2004, at B2 (recounting how the defendant in this case had not been taking
his anticonvulsant medications and had a seizure while driving).
334

See In re Civil Commitment of McNamara, No. C6-02-1596, 2003 WL 948353, at 1
(Minn. Ct. App. Mar. 11, 2003).
335

See generally McSherry, supra note 274.

336

Abraham S. Goldstein, Conspiracy to Defraud the United States, 68 Yale L.J. 405, 40506 (1958-1959).
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J. Bard “Incarceration of Individuals with Serious M ental Illness”

children were so compelling to her that she did so anyway.337 According to her, she cared more
about her children’s eternal damnation than about society’s laws.338 For this reason, the law did
not affect her actions. If punishment is intended to deter crime by convincing a person to control
her behavior, but mental illness interferes with a person’s ability to control behavior, then
punishment cannot deter a person who is mentally ill from bad behavior.339 The Yates jurors
rejected this view of deterrence, perhaps because of the argument that Yates waited for her
husband to leave the house and would have been deterred from drowning the children if he or a
police officer had been present.340 Yet such an argument is not dispositive, because it only shows
that an individual is as susceptible to external barriers as a driver would be to a blocked street.
Professor Robinson and Dr. Darley point out that although “increasing punishment would
[increase] clearance rates ... such increases would require one or all of the following: a
significant increase in the amount we spend on law enforcement and criminal justice; an increase
in the intrusiveness we suffer from law enforcement, and a reduction in the procedural
safeguards we provide in criminal adjudications.”341 Thus, using their analysis, a police officer
on every block would lower crime since it would make discovery more likely, but society would
have to pay for this increased security, both financially and through loss of liberty.342 In my
opinion, if deterrence is the only reason for criminal punishment, then it cannot be justified when
an individual is unaware of, or does not care about, future consequences.
2. Is Incarceration Intended to Be a Form of Quarantine?

337

See Jennifer Bard, Unjust Rules for Insanity, N.Y. Times, Mar. 13, 2002, at A25,
available at 2002 WLNR 4093279.
338

Christian, Life Term, supra note 286; O’Malley, supra note 20, at 157, 169, 192-93,

197, 199.
339

Because the clear presence of severe mental illness did not result in an acquittal, the
Yates case gives us a framework to consider what society seeks to gain by holding individuals
criminally responsible for their actions. One often stated view of the reason for imposing harsh
sanctions on those who violate laws is to protect society by deterring people from committing
crimes. See Dripps, supra note 317, at 1423. Much of the moral criticism of holding the mentally
ill criminally responsible stems from disagreement about whether the law should recognize that
some people cannot be deterred. Leslie A. Johnson, Note, Settled Insanity Is Not a Defense: Has
the Colorado Supreme Court Gone Crazy? Bieber v. People, 43 U. Kan. L. Rev. 259, 262 n.31
(1994).
340

See O’Malley, supra note 20, at 20.

341

Robinson & Darley, supra note 218, at 993, n.210.

342

Id. at 993.
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Another often cited reason for incarceration is that it serves the direct purpose of removing
dangerous individuals from society.343 The institutionalization of the mentally ill during the early
20th century was similarly intended to keep them separate from the rest of society, not to punish
them for their illness.344 Overuse of institutionalization led to legal reforms that placed a high
value on individual liberty and spawned a de-institutionalization movement.345 Indeed, it is now
343

See Hartjen, supra note 216, at 128 (discussing the history of criminal punishment as a
form of banishment from the community and a method of “incapacitating the offender in the
hope of gaining some protection for society by keeping the criminal at bay”).
344

See Slovenko, supra note 43, at 644 (noting that individuals suffering from addiction
and psychosis were diverted into hospitals rather than the criminal justice system because their
behavior was regarded as an illness not a crime).
345

History has not yet reached a final conclusion regarding the large-scale transfer of the
mentally ill out of residential institutions in the 1960s and 1970s, but the current view of this
process is that it was motivated by cost-cutting, not necessarily for improving care for the
mentally ill, and that it caused much hardship for the mentally ill. See Stavis, supra note 43, at
169-72. Stavis writes a clear, comprehensive recounting of how the mentally ill came to lose the
sanctuary of the mental institution and were, in a “war of liberation” released into society, only
to be reabsorbed by a new institution, the criminal justice system. Id. Stavis cites to the criticism
of this process, then termed “deinstitutionalization” by Judge David L. Bazelon, a noted
advocate for the mentally ill. Id. at n.59. (quoting David L. Bazelon, Institutionalization,
Deinstitutionalization and the Adversary Process, 75 Colum. L. Rev. 897, 907-08 (1975). Writing
about the process he observed in 1975, Judge Bazelon warned that:
Deinstitutionalization poses many of the same dangers as the closed institutions - and
perhaps some new ones besides. The “‘promise of freedom’” may be just as chimerical as
the “promise of treatment.”
... How real is the promise of individual autonomy for a confused person set adrift in a
hostile world? ... Are back alleys any better than back wards?
... Just as all patients cannot be helped by “environmental” or “milieu” therapy, not all
patients will be helped by autonomy in the community.
Id. See also Olinda Moyd, Mental Health and Incarceration: What a Bad Combination, 7
UDC/DCSL L. Rev. 201, 204-05 (Spring 2002) (stating that there is a link between the closing
of state mental hospital and the opening of “hundreds of new prisons” to accommodate the
released mentally ill; and concluding that, based on data from the Bureau of Justice Statistics,
“jails and prisons have become the institutions most likely to house the mentally ill”); Patricia A.
Streeter, Incarceration of the Mentally Ill: Treatment or Warehousing?, 77 Mich. B.J. 166, 166,
n.2 (1998) (noting that the “the rapid increase in prison populations in the past 10 years, and the
shift from institutionalization to community-based treatment of mental illness” has had the direct
result of shifting 500 former institutionalized psychiatric patients into Michigan prisons between
1993 and 1997) (citing Det. News, Dec. 4, 1997). See Stone, supra note 17, at 291-99 for a
comprehensive analysis of the contributing factors for severe mental disorders in inmates in
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J. Bard “Incarceration of Individuals with Serious M ental Illness”

quite difficult to confine a person without clear and convincing evidence that she endangers
herself or others.346 Therefore, although there is reason to fear the abuses of confinement, the
purpose is preserving safety, not imposing punishment. Removing criminals from society has
always been one of the justifications for imprisonment, but such removal does not stand alone
without other elements of punishment.347
3. What is the Role of Retribution?
Another purpose of criminal sanctions is to exact retribution against law breakers.348 We tell
ourselves that collectivist justice represents an advance in civilization, because it transfers the
task of retribution to the state, thus preventing individuals from seeking vengeance against those
who wronged them.349 In the modern Anglo-American legal system, the state’s right to seek

prisons and jails and of proposals to provide appropriate treatment for these inmates. Stone
attributes the disproportionate presence of inmates with severe mental illness to the lack of
community mental health treatment, which results in many persons “with severe mental
disorders [being] incarcerated in prisons or jails simply because there is no alternative [access to
treatment].” Id. at 291.
346

The current standard for civil commitment is the probability that an individual is a
danger to himself or others due to a mental illness. See Addington v. Texas, 441 U.S. 418, 426
(1979) (noting that “the state also has authority under its police power to protect the community
from the dangerous tendencies of some who are mentally ill”). See also Slobogin, Rethinking,
supra note 19, at 507-11 (discussing the constitutional difficulties of civilly committing people
who are by the nature of their personalities dangerous to others); Allison J. Meyers, Mentally Ill
and Mentally Retarded Defendants May Get a Chance at Justice: Recommendations to the Task
Force Created by Tex. S.B. 553, 77th Leg. R.S. (2001), 43 S. Tex. L. Rev. 1233 n.137 (citing
ABA Criminal Justice Mental Health Standards 7-6.8 (1989)) (stating that a defendant who is
found “mentally ill or mentally retarded and that ... poses a substantial threat of bodily harm to
others” will be “confined to a secure facility”).
347

See Gerry Johnstone, Restorative Justice: Ideas, Values, Debates 90-91 (2002)
(discussing why imprisonment, with its resulting concentration of law breakers and its
permanent stigma, increases rather than decreases crime).
348

Michele Cotton, Back With a Vengeance: The Resilience of Retribution as an
Articulated Purpose of Criminal Punishment, 37 Am. Crim. L. Rev. 1313, 1315 (2000).
349

Hartjen, supra note 216, at 127.
Until the twelfth century, crime was considered a highly individual matter to be resolved by
either blood feud or the payment of compensation to the injured party ... It was only when the
state in the person of the king began to assume control over criminal justice that the system of
corrections that has evolved to the present time began to emerge. Once crime was defined as an
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J. Bard “Incarceration of Individuals with Serious M ental Illness”

retribution relies on a finding that the individual is responsible for his acts.350 Thus, it is only
acceptable to punish those whom the law finds capable of forming intent.351 Unless the mentally
ill are seen as aware of and responsible for their actions, no accepted modern theory of
punishment justifies punishment as a form of retribution. As discussed supra, the insanity
defense developed in 16th century England, along with the decision to punish crimes for which
there is mens rea.352 The purpose of the insanity defense has always been to prevent punishing
someone who does not know his act was wrong and does not understand why he is being
punished.353 The dilemma is how to identify the irresponsible party. In designating someone not
guilty by reason of insanity, society says that person does not bear responsibility for his or her
actions, and seeking retribution would not be just.354
4. What is the Role of Rehabilitation?
Finally, one cannot discuss theories of imprisonment without raising the subject of rehabilitation.
Although currently not viewed with high regard, at various times in American history,
rehabilitation was the primary goal of the prison system.355 Beginning in the 19th century, many

offense against the state, the state, rather than the individual harmed, became the avenger.
Id.
350

See Dripps, supra note 317, at 1422.

351

See Biggs, supra note 113, at 82-84 (discussing the concept of a “guilty mind” and
how lack of it will not support culpability); 21 Am. Jur. 2d Crim. L. 35 (2003) (discussing the
capacity of children to commit crimes).
352

Matthew T. Fricker & Kelly Gilchrist, Case Comment, United States v. Nofziger and
the Revision of 18 U.S.C. 207: The Need for a New Approach to the Mens Rea Requirements of
Federal Criminal Law, 65 Notre Dame L. Rev. 803, 812-18, 813 n.51 (1990).
353

Northrup, supra note 82, at 803.

354

Id. at 799 n.27.

355

See Cotton, supra note 348, at 1319, 1360-61.
Certainly the criminal law was at its most utilitarian at about the mid-twentieth century, and
utilitarian concerns even now stand regularly side-by-side with retributive ones. But it is also
true that in their most meaningful test to date, the utilitarian purposes were found by many courts
and legislatures to be so inadequate to justify punishment that retribution had to be restored,
emphatically and by whatever means necessary, to the forefront of the scheme. Articulated
purposes, whether or not they always perfectly reflect substantive law or prevailing tendencies,
do reflect what people think they are doing or at least what they want to say about what they are
doing. And those purposes suggest that key participants in the criminal justice system - state
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J. Bard “Incarceration of Individuals with Serious M ental Illness”

Americans believed it was in society’s best interests to rehabilitate law breakers.356
Rehabilitation still exists in the form of education, job training, substance-abuse counseling, and
faith-based programs.357 Indeed, rehabilitation must exist, because the reality is that most people
in prison will eventually rejoin society. Rehabilitation takes on particular significance in the case
of the mentally ill, because advances in medications and therapy have proven highly effective in
restoring the mentally ill’s capacity for reason and thus steering them away from criminal
behavior. Whether these advances are the result of anti-psychotic medications silencing
command hallucinations or the result of medications combined with psychotherapy, enhancing
an individual’s ability to resist less specific crime-committing urges, such interventions change
criminals into law-abiding citizens.
XI. What Needs to Be Done?

courts, state legislatures, and even the U.S. Supreme Court - have never been sufficiently
enamored of utilitarian purposes to ensure their acceptance and implementation.
Id. See Mark Spatz, Comment, Shame’s Revival: An Unconstitutional Regression, 4 U. Pa. J.
Const. L. 827, 832-834 (2002) (tracing the evolution of rehabilitation in the American penal
system).
356

See Spatz, supra note 355, at 832-34; Brian J. Telpner, Constructing Safe
Communities: Megan’s Laws and the Purposes of Punishment, 85 Geo. L. J. 2039, 2046-47
(1997) (explaining that:
Progressive reforms in the last decades of the nineteenth century and the first decades of
the twentieth century tried to distinguish those criminals who could be rehabilitated from
those who could not. After 1850, many states passed “good time” laws, which reduced
prisoners’ sentences for good behavior. Judges were granted the power to sentence
criminals for indefinite periods of time until they were deemed fit to reenter society, “just
as a person suffering from physical disease or infection is sent to a hospital or asylum, to
remain for such period as may be necessary for his restoration to health.” By the end of
the nineteenth century, more than half the states had some form of parole law, yet another
way to distinguish the worthy from the unworthy prisoners and to allow the worthy ones
to reenter law-abiding society.
Id.
357

Michael Welch, Rehabilitation: Holding Its Ground in Corrections, 59 Fed. Probation
3, 5 (1995). See Webb Hubbell, The Mark of Cain, 16 Fall A.B.A. Crim. Just. 33, 2 (2001)
(explaining that though rehabilitation is still viewed negatively by some, “the Justice Department
has made a tentative start, backing pilot ‘reentry partnership’ programs in eight states ... which
bring together corrections institutions, local police, businesses, faith-based and community
organizations to help ex-offenders reenter society.”). See generally Daniel Brook, When God
Goes to Prison, 2003 Leg. Aff. 22 (June) (providing a detailed example of a faith-based program
in a prison in Texas offered for its rehabilitative purposes).
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First, there needs to be appropriate mental health care accessible to all people whether they are
imprisoned, involuntarily committed, or living freely in the community.358 Second, there must be
a fair, humane mechanism for restraining the liberty of the mentally ill who endanger themselves
or others. This mechanism requires a strong civil commitment system that does not repeat the
past. Third, prisoners diagnosed with mental illness should receive appropriate mental health
care in prison and assistance in making the transition to appropriate community-based care when
they are released.
Fourth, we must develop a public health model encouraging compliance with treatment in the
free world. We must recognize that although an individual has the same right to refuse mental
health treatment as to refuse any other type of medical treatment, there is no right to live freely
in society as a danger to himself or others. Under this rationale, a refusal to accept treatment
could, with appropriate procedural protections, result in either directly observed therapy or
confinement under less restrictive conditions.
Fifth, society must realize that even if we were to provide universal health care, we will still be
left with the question of which mentally ill individuals should be held criminally responsible for
their actions to the extent that they must serve a fixed prison term, or even be executed. Further,
this question will remain, despite the fact that the individual is no longer a danger based on the
current standards of medical care: because he is cured of his mental illness or is cooperating with
a course of treatment that brings it under control.359
XII. Conclusion

358

Perhaps the saddest part of the Andrea Yates story is that the medical system so often
failed her, despite her access to high-quality insurance. See supra note 21. Lack of a legal right
to adequate mental health treatment left her shuffled from doctor to hospital without time to
meet her needs. In her suburban home, she was no better able to access effective mental health
than the poorest indigent living under a bridge. This, not her exclusion by the narrow boundaries
of the insanity defense, is the tragedy.
359

Dr. Alison Rutledge maintains that this situation is one of the most difficult aspects of
the law for mental health professionals to accept. Referring to a popular science fiction television
program, Star Trek: Voyager, she recounts a scenario of a ship bringing a condemned prisoner to
his victim’s family so they may witness the execution. During the journey, medical staff
discover they can remove the part of his brain which led to his criminal behavior. After this
procedure he is literally no longer the same man. Confronted with this information, the victim’s
family reflects and then decides his current mental status is as irrelevant to them as is his future
potential for danger. He is, in fact, the being who murdered their son and they insist that he be
executed. Alison H. Rutledge, Insanity and the Insanity Defense: What is Guilt? Who Decides?
21-22 (Spring 2002) (unpublished class paper, on file with author).
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J. Bard “Incarceration of Individuals with Serious M ental Illness”

This Article expresses my belief that the sharp increase in the number of people with mental
illness in America’s prisons is directly attributable to the lack of outpatient mental health
services. Further, the lack of available health care in prison and the conditions in which people
with mental illness are housed makes their incarceration in the criminal justice system morally
and legally unacceptable. In order to end this injustice, we must allocate adequate funding to
create adequate access to mental health care for all. Without universal access to mental health
care, individuals with mental illness will continue to find it difficult to conform with societal
norms and will increasingly find themselves arrested and imprisoned as a consequence. Even if
we do not face this as a public health crisis, the Eighth Amendment requires us to face this
public health crisis within prisons that is resulting in deliberate indifference to prisoners’ serious
health care needs.
The current flood of criminal convictions of the mentally ill has overcome the ability of the
insanity defense, as it currently exists, to help fact-finders make just or morally defensible
decisions as to who should be held criminally responsible for their actions and who should not.
Without societal agreement about both how mental illness affects criminal responsibility and
mental illness treatment’s effectiveness, dissatisfaction with the insanity defense will increase.
For this reason, we should look to the expertise of public health policy makers to develop a
system of outpatient mental health care that can reduce the number of crimes committed by
people with mental illness which will allow legal policy makers to make a comprehensive
review of society’s goals in imposing guilt and punishment on those who violate the law. Neither
of these things can be done until society reaches a consensus about who is “mad” and who is
“bad.”
A review of the history of the insanity defense shows that it was created to deal with a small
number of cases when a defendant’s mental illness rendered him essentially unaware of his
surroundings and his actions. It is as wrong to use 16th century England’s standards for
determining criminal responsibility as it would be to burn as witches people who behaved oddly.
Although the mere diagnosis of mental illness cannot and should not provide immunity from
responsibility, there can be no just system without an understanding of how mental illness affects
responsibility.
There will always be individuals who are a danger to society based on their impaired thought
processes or judgment, but transferring the untreated mentally ill to the prison system rather than
engaging in a careful process of civil commitment and universal access to treatment is not the
solution, nor is tinkering with current formulations of the existing insanity defense. Neither
harsher legislation nor stronger efforts will change the fact that some mentally ill people commit
crimes. We need not believe that everyone who disregards the norms of society when
committing a crime is mentally ill in order to treat with compassion the mentally ill who do
commit crimes. Nor is it necessary to achieve society’s goals to remove and punish people who
break the law by confining them in prisons where they do not receive mental health care, or live
in an environment that worsens their condition. If a society is judged by its treatment of the
weakest and sickest among them, then given our failure to provide adequate mental health care
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we in the United States deserve harsh judgment indeed.

Associate Professor of Law, Texas Tech University School of Law, Lubbock Texas; J.D., Yale Law School, 1987;
M.P.H., University of Connecticut, 1997; A.B., W ellesley College, 1983. This work grew out of an invitation to give
the second Nordenberg Lecture at the University of Pittsburgh Law School in October 2002, where I had the honor
of Chancellor Nordenberg’s presence at the lecture. I very much appreciate the questions and comments following
the lecture, which informed this article. Thank you also to Professor Elyn Saks, Orrin B. Evans Professor of Law,
Psychiatry and Behavioral Sciences, University of Southern California Law School, who read a late draft and made
many helpful comments; Donna Vickers of the University of Texas Medical Branch; and to my primary research
assistant at Texas Tech Law School, Kristi W ard ‘05, for her invaluable contributions to the project. In addition,
Emily Newell ‘04, Shaun Hunley ‘05, Yolanda Sewell ‘05, and Rachel Khirallah ‘05 all provided substantial
research help at critical times. I am especially grateful to my students at the Institute for the Medical Humanities at
the University of Texas Medical Branch in Galveston, Texas: Alison Rutledge, John Caskey, Amy McGuire,
Bernadette M cKinney, and Jason Morrow, with whom I discussed these issues; and to William J. W inslade, Ph.D.,
J.D., who provided me with much insight about the insanity defense. I also thank Dr. Howard Zonana, Professor of
Medicine and Law at Yale Medical and Law Schools. My role models in this work are my mother, Dr. Barbara T.
Bard, and Dr. Dorothy Otnow Lewis - for their groundbreaking research on death row inmates that has already done
so much to bring to the legal system an understanding of the serious mental illness and neurological damage of those
we imprison. Finally, I thank my brother Eli Bard for his constant help and encouragement. All the errors and
mistakes in this piece are mine, despite the best efforts of those who have tried to assist me.

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76