Krazy Killers

“Not guilty by reason of insanity.” NGI. It is a difficult defense to a murder (or other) charge in the United States, and different states apply different rules to determine what constitutes insanity. Some apply the M'Naghten rules (pronounced, and sometimes spelled, McNaughton), derived from an English case decided in the middle of the 19^th century. The House of Lords determined that to find a defendant not guilty by reason of insanity, the court must find that “at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” The essence of this defense, therefore, is an awareness of wrongfulness.

One state, New Hampshire, uses a modification of the M’Naghten rules determined originally in an 1871 appellate case, Durham vs. the United States, which held that the defendant is not “criminally responsible if his unlawful act is the product of a mental disease or defect.” Or this test: “The Irresistible Impulse Test was first adopted by the Alabama Supreme Court in the 1887 case of Parsons v. State. The Alabama court stated that even though the defendant could tell right from wrong, he was subject to ‘the duress of such mental disease [that] he had ... lost the power to choose between right and wrong’ and that ‘his free agency was at the time destroyed,’ and thus, ‘the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely.’” FindLaw.com. In some states, acting while intoxicated is not a defense while in others it can at least be considered to reduce the severity of the crime under a notion of diminished capacity.

But there is a bigger question, particularly in Kansas, Montana, Utah and Idaho, where states do not recognize the insanity defense at all. Is the right to an insanity defense inherent in the U.S. Constitution or is it simply a choice in the state where the crime occurred? Until 1981, the federal government and all of our states recognized the plea, a situation that changed when John Hinckley, Jr. was acquitted in his assassination attempt on President Ronald Reagan. Several states were outraged and accordingly modified their laws by eliminating that defense.

The United States Supreme Court is now faced with that constitutional question in the following set of facts: “There’s no doubt John Joseph Delling knew what he was doing. His carefully planned 2007 crime spree lasted weeks, covered 6,500 miles and culminated in two people dead and one seriously wounded…. He had his reasons, too. Delling, then 21, had become ‘a type of Jesus,’ he later explained, and the men he attacked, two of them former classmates he had not seen in years, were stealing his ‘energy.’ An MRI of his brain would have revealed the damage the men had already caused, he told authorities.” Washington Post, July 22^nd. The court side-stepped the big issue in 2006 by saying a state (then Arizona) had to power to narrow its definition of insanity in criminal cases, but the Idaho Delling case brings the underlying issue back up to the highest court.

In fact, Delling copped a plea, knowing that there was no insanity defense in Idaho. “Delling’s lawyers said throughout his case that Idaho’s law kept him from making the only defense he could, and he pleaded guilty to second-degree murder…The trial judge found that Delling did not have the ‘ability to appreciate the wrongfulness of his conduct,’ but the judge still sentenced him to life imprisonment. Fisher said he is in solitary confinement in a maximum-security prison.” The Post. Was this “voluntary” plea (could Delling even form a mentally-sufficient opinion to make plea bargain?) sufficient to allow the Supreme Court to side-step this issue once again?

“Delling has drawn support from organizations such as the Constitutional Accountability Center and the American Psychiatric Association, as well as a group of 52 law professors who told the Supreme Court that the affirmative defense of legal insanity has ‘such a strong historical, moral and practical pedigree’ that it has become ‘a matter of fundamental fairness in a just society.’” The Post. But public outrage, particularly at heinous and notorious crimes, has made an NGI defense seem as if defendants are literally “getting away with murder,” even though such defendants often spend all or most of the rest of their lives confined to mental hospitals under pretty bad conditions.

This subject arises as the world looked on in horror at University of Colorado grad student, James Holmes (above), dressed in combat gear and using a powerful arsenal of various weapons, wreaked murderous havoc at an Aurora, Colorado movie theater. With a dozen dead and 58 injured, some critically, people were horrified, angry and many wanted complete “justice” without mitigation. While Colorado has executed only one convict since 1976 and currently only has four prisoners on death row, there are many who believe that Mr. Holmes is an appropriate candidate for the death penalty. Though there are very few compelling arguments that a clearly troubled-Holmes, if found not guilty by reason of insanity, should ever have the potential of living free at the end of a very long hospitalization, the question of a battle over his ability to make the NGI plea at all has only added fuel to this fiery debate. Where do you come down on this issue? Does it matter how heinous the crime might be?

I’m Peter Dekom, and adhering to ethical and moral standards in extreme situations is always the test of the underlying mettle of any society.