Insanity Defense

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1. Discuss the positive and negative challenges raised by the insanity defense. Evaluate and discuss recent trends.

Although the insanity defense has aroused major criticism in recent years, it is being used with increasing frequency by defense attorneys, and there is every indication that this will continue in the future (Pollack, Gross, & Weinberger) (Seymour Pollack, Bruce H. Gross, Linda E. Weinbergerhttp://www3.interscience.wiley.com/journal/114178597/abstract?CRETRY=1&SRETRY=0).

Numerous legal procedures affect the operation of the insanity plea in courts negatively (e.g. instructions to the jurors, burden of persuasion on the prosecution or defense, forms of verdict). The definition of what constitutes a mental illness and if it takes away criminal responsibility is also a challenge for the jurors and courts to contend. Third, even within the medical field and disciplines, physiatrists and psychologists, as an example, differ in their definitions and application to the insanity defense (http://www.dougwalton.ca/papers%20in%20pdf/75philper.pdf). The one positive issue is that some people are mentally insane and therefore this is a necessary defense for this, albeit small, population e.g., fairness of the law.

There are also many controversial trends, both public and legally surrounding insanity defense.

1. Controversial: Perceived to be used more and is successful more than it actually is

For example, "legal and mental health professionals are notimmuneto the pervasive misperceptions concerning the operation of the insanity defense. Approaching mythic proportions, widespread erroneous beliefs are firmly held regarding the frequency and success of this defense. Contrary to these beliefs, insanity defense is raised in less than 1% of cases and is successful only about one-fourth of the time (Silver, Cirincione, & Steadman, 1994). Despite polarized views in high-profile cases, nearly one-half of successful insanity cases are resolved by a consensus between the prosecution and defense (Cirincione, 1996). (Rogers & Shum, 2005) (Fundamentals of Forensic Practice Mental Health and Criminal Law. http://www.springerlink.com/content/vvn851w652477073/)

2. Regardless of public opinion, NGRI cases receive longer periods in lock-up than if they had not been charged with a crime

Notwithstanding a few highly publicized exceptions, most NGRI (i.e., "not guilty by reason of insanity") patients are institutionalized for extended periods of time (Rogers & Shum, 2005) (Fundamentals of Forensic Practice Mental Health and Criminal Law. http://www.springerlink.com/content/vvn851w652477073/)

3. Lack of understanding about the insanity defense leads to confusion, even for jurors

According to Rogers and Shuma (2005), the "insanity defense" itself is on trial in every insanity case. A jury cannot consider ...