Jacob M. Appel, M.D., J.D.
 
The recent release of would-be Reagan assassin John Hinckley Jr. serves as a reminder that while for much of the country, the three decades starting in 1980 were the ‘Reagan Era,’ forensic psychiatry remains trapped in a ‘Hinckley Era.’  Hinckley pled not guilty by reason of insanity (NGRI) and was acquitted on all charges.  In the public backlash that ensued, the federal government and the majority of states made such defenses far more difficult (1).  Many jurisdictions shifted the burden of proof to defendants, requiring “clear and convincing evidence” that mental illness prevented legal culpability.  Others switched from NGRI to a “guilty but mentally ill” approach. Four states abolished the insanity defense entirely.  In federal courts, Congress passed legislation preventing expert witnesses from “testifying…as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged”  (2). As a result of these so-called reforms, only 1 in 500 NGRI defenses in felony cases are now successful (1).

Hinckley’s acquittal brought a period of reform to a grinding halt.  During the 1970s, an increasing number of states adopted the Model Penal Code test for insanity, which absolves an offender if, “as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.”  That is a broad standard that takes into account both delusional thoughts and an inability to control one’s actions.  In New Hampshire and the District of Columbia, courts went even further, adopting the so-called Durham standard that requires acquittal if the crime was in any way a “product” of mental illness.  After Hinckley, state governments backed away from these measures.  A number of jurisdictions even reverted to the more demanding M’Naghten Rule, which requires, in essence, that a defendant not know right from wrong.  At the same time, a sensationalist press—often with minimal, if any, psychiatric knowledge, demonizes criminal defendants in spite of their apparent mental illnesses.

The results are regularly visible on our news screens.  Anyone with a basic knowledge of mental illness who watched the legal proceedings against Jared Loughner (the Gabrielle Giffords shooter) in Arizona or James Holmes (the Aurora theater gunman) in Colorado had to wonder seriously about their sanity.  Unfortunately, the “Goldwater” rule prevents psychiatrists—including this author—from commenting directly about patients we have not examined.  Non-psychiatrists, of course, are free to speculate ad nauseam.   The result is that the people with the most knowledge of the subject are silenced, those with the least knowledge fan the bloodlust of the masses, and severely ill offenders are sent to prison.
 
Nobody should interpret this as mitigating the horror of these killings.  But imprisoning offenders with severe mental illness does little to deter crime.   What schizophrenic watches the James Holmes trial and decides to mend his own ways?  The time has come to put the legacy of Hinckley behind us and to start returning severely mentally ill offenders to psychiatric hospitals, which is where they belong.  At present, ironically, Mr. Hinckley is free—but our society remains enslaves to the bizarre regime he wrought.

References

 1. Hsu Spencer S. and Marimow Ann E.  “Would-be Reagan assassin John Hinckley Jr. to be freed after 35 years,” Washington Post, July 27, 2016.
 2. Federal Rules of Evidence, Rule 704, Rule 704. Opinion on Ultimate Issue.