It’s time to scrap the insanity defense altogether – ‘Innocent by Reason of Insanity’.  A crime should be defined by criminal behavior, not just by the state of mind of the accused. It ought to be replaced with a plea of “Guilty by Reason of Insanity’. The fallacy of the insanity plea is that it only assigns responsibility based on the state of mind of the perpetrator. This is of course a very major issue, but it is not the only issue. No matter how deluded a defendant is, once he commits the action of a crime, then there are consequences for other people. They count too. There are two competing issues - the defendant’s state of mind and the consequences from the commission of a crime. There is a difference between just a private fantasy and social behavior.

Historically, the insanity defense was codified in England by the M’Naghten Rules of 1843. Mr. M’Naghten killed the secretary to the Prime Minister in a failed attempt to kill the Prime Minister. He was found to be ‘not guilty by reason of insanity.’ The key to this ruling is that the defendant could not appreciate the nature of his actions during the commission of his crime. This defense was accepted by American courts until the mid-20th century. There have been some erosions of the law since then.

‘Guilty by reason of insanity’ takes both issues into account. This should be used when a perpetrator is found suffering from severe mental illness and does not know the nature and quality of the act he was doing, or does not know right from wrong. This plea would take the social consequences into account as well as the state of mind of the perpetrator. Thus, there could be a fair sentencing based on all factors. Commitment to a mental institution could then weigh both the psychiatric issues and the harm done. 

For instance, James Holmes, the man who killed twelve people and injured seventy others at a movie theater playing “The Dark Night Rises”, should never see the light of freedom again. He was clearly and indisputably psychotic. Yet he still was clear enough to rig his apartment with bombs to kill first responders. If the perpetrator of this horrific crime was to be found ‘not guilty by reason of insanity’ and his psychosis was successfully treated, should he then be freed? No, he should never go free. Even if he was psychotic, which he was, he still bears responsibility for the enormous harm done.

Nobody thinks anymore that a drunk driver who kills someone should be exonerated because he was so intoxicated and impaired that he didn’t know what he was doing at the time. It wouldn’t have happened if he were sober. No matter what, when a criminal behavior is committed and there is irreversible damage, we are still responsible for our actions, no matter what our state of mind.

A deeper understanding of a psychotic character also muddies the water between the claim of no responsibility or some responsibility. For instance, I evaluated a woman, many years ago after she had jumped out a third story window and lived. She claimed it wasn’t a suicide attempt because she was certain that she would ascend to heaven in her body. She believed she would be going up, not down. Yes, she was deluded. The real truth was, on further evaluation that she was indeed suicidal, even though at the moment of jumping, she was ‘temporarily insane’ and believed her story. The ‘tell’ is that she didn’t decide to ascend to heaven from the ground, where if she failed, no harm, no foul. Even though she honestly believed she’d go up when she went out the window, it was a suicide attempt. Even though her right hand did not know what her left hand was doing, her action decision was unerringly accurate. She was going to go down to her death. Despite her deluded belief, she was in fact trying to kill herself.

The greatest problem I have with ‘Guilty by reason of insanity’, comes from the use of antidepressants, because people take these pharmaceuticals innocently by prescription without awareness of their dangers. It has been clearly shown that the SSRI’s can promote suicidal and homicidal behaviors. These psychoactive drugs alter the thinking processes and can promote loss of control over violent impulses. It is only a matter of time that the black box warning for children and adolescents will extend to adults as well. [For an alternative understanding of depression, see – “No It’s not the Neurotransmitters. Depression is not a biological disease caused by an imbalance of  serotonin.”] Most, if not all, of the individuals who committed the bizarre mass murders of the past twenty years have been on antidepressants. Prior to this time we never had such occurrences. This may not be the only issue, but they are majorly contributory. Likewise, it has already been shown that the increased suicidal ideation and acting on the violence of suicidal impulses is directly related to these drugs. The list of suicides on antidepressants is growing daily. Patients also act on the violence of other self-injurious behaviors, including cutting and accidental self-strangulation. These patients are taking a drug that alters their mindset, ideation, judgment, and impulsivity. If such patients had never been on antidepressants would they have acted out? Quite possibly not. This is a great tragedy. I still come down on the side of ‘Guilty by reason of insanity’ because of the social harm done. And this plea allows us to address more responsively the appropriate sentencing.

Robert A. Berezin, MD is the author of “Psychotherapy of Character, the Play of Consciousness in the Theater of the Brain

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