The insanity plea

 by John L. Messina

The recent tragedy in Tucson has focused the nation on the fragility of life and also on what damage can be wreaked by a demented mind.  And already there are calls to impose the death penalty on the killer.   The young man obviously committed the heinous crimes.  How can he be defended?  

Everyone is entitled to a defense.  In this case the strategy of the defense may be simply to avoid the death penalty.  Another strategy may be the assertion of what is commonly called the “insanity defense.”  That defense is a real one, but one that goes against our nature and belief that those who commit crimes must pay for them. 


The insanity defense is not new.  In the English-speaking world, evidence of
cases in which pardons were granted on the ground of “madness” exists from medieval England. In the United States, the insanity defense has always been an accepted part of criminal law doctrine. Today most states define insanity as a mental impairment that impedes a person's ability to understand the wrongfulness of his or her act. It focuses on the ability of the criminal to mentally appreciate what he or she was doing.  Some states also permit a defense when the disability impairs the person's ability to control the act, even though the person may realize he or she is doing something wrong.  The defense has been controversial  After all, it allows those who commit murder to escape  punishment.  However, those acquitted in this way are usually confined to a mental hospital for a long time under lock and key, just like a criminal.  The difference is, they get the medical assistance they need to deal with the mental illness that caused them to commit the crime in the firstplace.  Nonetheless, at some future time, if they can prove they are no longer mentally ill, they may be released.  They can never be tried for the crime as they have been acquitted. 

Another defense that can be made is that the criminal, while not “insane” at the time of the crime, is not presently able to participate in his or her defense at the time of trial.  If that is accepted, the trial is deferred.  If the prosecution can later show the person is capable of assisting in the defense, he or she can be tried and convicted, as there never was a finding of acquittal. The burden on proving insanity is on the person claiming it.  The prosecution does not have to prove sanity at the time of the crime.  Jurors are generally suspicious of the defense and, absent a strong showing of mental aberration, the defense simply fails.

In conclusion, the “insanity” defense while controversial is still necessary in a civilized society, to prevent the punishment or execution of those who truly could not possibly have known they were committing a terrible crime or could not have rationally controlled their behavior because of severe mental illness.  It is a defense that should be used sparingly and jurors should hold the person claiming it to strict proof.  The insanity defense will probably be used in Arizona.  We can only hope that justice will take the appropriate course, whatever that is.  In the meantime, we at MBC continue to mourn the loss of six lives and continue to hope and pray for the recovery of the surviving victims, including Representative Gabrielle Giffords.