It was notoriety he wanted, and with a successful defense of not guilty by reason of insanity, John Hinckley perversely achieved it. His attempted assassination of President Ronald Reagan never did impress Jodie Foster, but John Hinckley and the insanity defense will be mentioned in the same breath for many years to come. Not that he would want it so these days; Mr. Hinckley has learned well by now that leaving St. Elizabeth's Hospital will prove harder than recovering from a major mental illness.

"John Hinckley has not been treated with medication in five years . . . every psychiatrist and psychologist in a position to evaluate him says his psychosis has been in remission . . . he has not had any incidents of violence or dangerous behavior," argued his attorney Barry Levine. With this kind of history, it is not at all surprising that Mr. Hinckley has been enjoying full grounds privileges at St. Elizabeth's, where he has been housed for fifteen years.

Recently, Hinckley applied for an escorted furlough to leave the hospital grounds for a four hour visit to his family. Under a special exception, a court hearing was required for Hinckley to gain any off grounds privileges whatsoever. Despite testimony from all consulting mental health professionals and the hospital review board that the pass was appropriate and he was ready, Judge June Green denied the request, remarking, "The Court is still left with a record that John Hinckley Jr. is a dangerous individual . . . the Court cannot find by a preponderance of the evidence that Mr. Hinckley will not be a danger to himself or to others." This, despite the knowledge that hospital personnel would be accompanying the patient, with Secret Service not far behind.

Such is the trap of the successful insanity defense, which snares the acquitted in a variety of ways. "Once you're caught up in the forensic system, there's not a whole lot you can do," observes Steve Harkavy, Esq. principal attorney for the Mental Hygiene Legal Service of the State of New York.

Close examination of court decisions from around the country suggests judges are routinely adopting an ever more punitive and pessimistic stance toward insanity acquittees even as we become more sophisticated about and tolerant of the ill among us. For some who mark time, the forensic hospital becomes nothing more than a seedy motel with the formalities of paperwork to process confinement until enough years have passed that the public feels the defendant has repaid his debt. For others, the crime will always throw a scare through the court that precludes earlier release—regardless of the acquittee's progress in the hospital.

Seventeen years ago, Pat Knapp, now Poughkeepsie (NY) Chief of Police, was one of the investigating officers who responded to a report of a teacher, Albert Fentres, who had tied up a stranger in his basement, shot him to death, and castrated him. Chief Knapp recalled a trail of blood leading to a frying pan in the kitchen-and a pubic hair on a fork. Fentres was eventually found not guilty by reason of insanity, and committed to Pilgrim State Hospital on Long Island. According to forensic psychiatrist Dr. Azariah Eshkenazi, after two weeks of treatment Fentres was no longer psychotic. Nevertheless, he remains hospitalized seventeen years later. "The man should be released," Dr. Eshkenazi asserts. Chief Knapp, however, is more cautious. "When I see some of the people who get released, it's a concern," he responded upon hearing the doctor's comments. "I've pulled people from the Mid-Hudson Bridge and taken them to the emergency room, and the psychiatrists say there's nothing wrong with them, that they won't admit them to the hospital. I tell them, ' "What do you want me to do, take him back to the bridge?"'

Who's to challenge a decision to keep a murderer locked up? And when particularly ugly crimes are committed by the psychotic, public fears about the chronic mentally ill are validated. Who can forget the summer day ten years ago when Juan Gonzalez stunned New York by pulling out a sword on the Staten Island Ferry? Two were killed in the attack by the now 54 year old Cuban immigrant with a diagnosis of Schizophrenia, later found not guilty by reason of insanity. After a steady period of recovery, Mr. Gonzalez quietly began traveling off hospital grounds with staff accompaniment in March 1995. Unescorted off grounds privileges would require higher approval, however. Examiners inside the hospital and those retained by the state agreed; Gonzalez was ready for unescorted passes. When no privileges came, Gonzalez went to court; and the judge responded, "No compelling need to alter this apparently successful treatment plan has been established, and the testimony of the psychiatric experts heard by this court does not dispel all doubt. . . ."

---

---

In this language, Judge Bert Katz wrote what attorneys, prosecutors, administrators and acquittees have come to recognize as an unwritten rule: The insanity acquittee must prove, beyond a reasonable doubt, he will never again break the law. And if he does, and is released, and drinks, or drugs, or stops medicine, or stops going to the doctor, back in he goes, so much the harder to regain freedom.

Most of the published appellate court opinions on recommitment involve cases where acquittees were originally charged with a violent crime. For nonviolent offenders, a 1983 U.S. Supreme Court decision and its later interpretation built the trap that has locked them up far longer than they had ever imagined.

Petit Insanity

Michael Jones was never out to impress Jodie Foster; he attempted to steal a coat from a Washington, D.C. department store in 1975. The maximum sentence for this charge, with conviction, was one year. But Mr. Jones, who was diagnosed with Schizophrenia, was found not guilty by reason of insanity, and has been in the hospital ever since. Jones' effort to leave the hospital included a challenge that he should not be held longer than he would have been if convicted. This culminated in a landmark U.S. Supreme Court decision.

In Jones v. United States 463 U.S. 354 (1983), the Court characterized insanity acquittees as a 'special class' distinct from patients civilly committed. The Court ruled that states could criminally commit a mentally ill offender to secure psychiatric facilities indefinitely—beyond even the maximum term to which he would have been sentenced had he been convicted of the underlying crime. To the Court, the previous insanity acquittal essentially proved mental illness and dangerousness. Quoting from the opinion in Overholser v. O'Beirne (302 F. Supp. 852, 861), "[To describe the theft of watches and jewelry as "nondangerous" is to confuse danger with violence. Larceny is usually less violent than murder or assault, but in terms of public policy the purpose of the statute is the same to both," the Court explained. "Crimes of theft may frequently result in violence from the efforts of the criminal to escape or the victim to protect property..." The Court added, "someone whose mental illness was sufficient to lead him to commit a criminal act is likely to remain ill and in need of treatment."

The decision in Jones has since echoed in court decisions around the country, and represents a significant departure from legal standards for the commitment of patients to civil psychiatric hospitals. Those standards, which generally warrant that the patient be dangerous to self or to others, require clear and convincing proof of this based on the Supreme Court's decision in Addington v. Texas 99 S.Ct. 1804. Prior to Jones, 19 states had identical standards for the release of insanity acquittees (Perlin M., The Jurisprudence of the Insanity Defense, 1994 Carolina Press). But many who are considered for civil commitment were once a part of the criminal justice system. They are not involuntarily admitted to the hospital any easier having an established criminal history. The 'special class' distinction that makes it easier to commit insanity acquittees is actually a product of the defense they have successfully employed, rather than the criminality itself. It is therefore every bit as much a punishment by the Court.

Attorney Harry Fulton, who represents Mr. Jones, laments the petty criminals in the same position as his client. "This is a jurisdiction where cashing a bad check is dangerousness." He described another client who was originally found not guilty by reason of insanity after stealing a package of meat from the local Safeway. While not violent, and not dangerous, according to Mr. Fulton, the defendant drank while conditionally released from the hospital. He was recommitted.

---

---

Health Care Reform

Insanity defense reform, which followed the controversy over Mr. Hinckley's acquittal, included well-developed provisions for recommitment and retention. And criminal courts were more consistently included in the decision making about transfer, furlough, or release. The result? According to the researcher Henry Steadman and his colleagues (Before and After Hinckley: Evaluating Insanity Defense Reform 1993 Guilford Press p. 58), of acquittees studied in the California system, only 1 percent had been unconditionally released; 95 percent were confined to the hospital.

The criteria for legal insanity continues to change from state to state, typically after highly publicized cases of mentally disordered defendants. Several states have even abolished the insanity defense, with the obviously ill diverted to a track of not competent to stand trial and spirited away to state hospitals where they can be tucked away, out of sight. "The pendulum has swung from the time when everyone was thought to be treatable, which isn't true, to a time where no one is thought to be, which isn't true, either," observed Dr. Mel Goldzband of San Diego.

Numerous forces of mental health progress and economics have buffeted the law, with often unusual impact. A tightening of resources to the chronic mentally ill has resulted in scores of undertreated, sometimes untreated, in the community. Civil commitment laws in the spirit of Addington that gave more consideration to patients' liberty interests, and restrictions on reimbursement have reversed the clinical mindset to emphasize outpatient treatment whenever possible.

At the same time, proactive policing in several cities is incarcerating greater numbers for quality of life crimes. This is diverting many obviously ill and poorly functioning patients to indefinite incarceration as an alternative to institutionalization. Expeditious findings of incompetency to stand trial shift these chronic mentally ill to state hospitals, where they are treated and warehoused. By the time they have organized enough to complain that they did nothing more serious than steal a firelog to keep warm, months have passed. Is this truly what the client wants?

Corrections psychiatry is thus becoming the fastest growing—perhaps the only growing—sector for the inpatient care of the chronic mentally ill. But with treatment for serious mental illness more advanced than ever, hospitals confront the reality of acquittees no longer suffering from the illnesses that made them dangerous. And so, court paternalism has replaced doctors' paternalism.

Fun with Diagnoses

Sometimes, the court is just naive enough to justify its decision making. Years of psychiatric research and endeavors to establish consensus diagnostic criteria have resulted in the Diagnostic and Statistical Manual, which includes scores of diagnoses—and the caveat that the book is to be used with caution in the courts. Insanity defenses have been successfully advanced with schizophrenia, manic depressive illness and depression. Less frequently, post-traumatic stress disorder and dissociative disorders, or mental retardation have been employed. For the myriad other diagnoses, establishing a basis of a major mental illness has been difficult—just ask Jeffrey Dahmer. And for a while, courts held that acquittees suffering from a personality disorder, or a peculiar sexual fetish, were not necessarily suffering from a psychiatric illness.

In Foucha v. Louisiana, 112 S.Ct. 1780 (1992), the Supreme Court held that retention of an antisocial personality disordered insanity acquittee violated due process even if Foucha were to still be dangerous because he no longer had a major mental illness. Wrote Justice White, "It would be only a step away from substituting confinements for dangerousness for our present system (Id. at 1787)." But more recent decisions all across America have made it quite clear that any diagnosis will do (Osborn v. PSRB 934 P.2d 391; State v. Miller 933 P.2d 606—see The Forensic Echo (1)8, p 15). In Miller, for example, the Court ruled in the case of an acquittee with antisocial personality disorder that a legal definition of mental illness, which might differ from a psychiatric or psychological definition, could be used. "They figured they got the tiger by the tail," observed Dr. Richard Markhoff, who consulted on Miller while working in the Hawaii forensic system. And so, the boundaries excluding personality disorders from consideration as mental illnesses warranting recommitment have clearly eroded.

The mental health community has aided the wordsmithing from the bench with its own creativity. Research has expanded the boundaries of bipolar disorder to include those who are hypomanic. And treatments for bipolar disorder, such as mood stabilizing agents lithium and valproic acid, are given with greater frequency to the personality disordered than ever before. Mental health professionals will generally agree that someone with a history of hypomania and depression (Bipolar Disorder Type II) is far different from someone who has had a full blown manic episode. You'll be hard pressed to find a hypomanic on a civil inpatient psychiatric unit, and bipolar II will never earn an insanity acquittal, but it sounds good enough to warrant recommitment. Perhaps not so coincidentally, bipolar II is often hard to distinguish from narcissistic personality disorder, a condition seen in a fairly high number of prison inmates.

---

---

The courts cannot possibly maintain insanity acquittees without at least significant supportive documentation from treatment givers. But courts have deftly interpreted the medical chart with the same flexibility seen in the application of legislative statutes outlining the recommitment of the mentally ill. Certainly, some acquittees make it an easy decision for the court, with histories of fighting, total lack of insight, histories of repeated violence while out of the institutional environment, and serious psychiatric illnesses prone to relapse. But for other acquittees, court decisions to retain require more self-serving interpretation of the progress notes. These decisions make superficial legal sense, but there is no consistency from one judge to the next. One judge interprets dangerousness as refusing treatment for a few weeks while on the forensic unit, another as swearing at staff, another as coming back drunk from an escorted pass. And courts differ in their appreciation of the purpose continued hospitalization should serve.

Glen Watt, committed to Harrisburg (PA) State Hospital following a not guilty by reason of insanity finding for homicide charges, challenged his commitment on the grounds, among other things, that he was merely being warehoused (In re Watt 525 A.2d 421 (1987)). The Court, in denying his appeal, noted that his commitment was treatment enough, as a less structured setting would increase the risk he might regress to the same behaviors he exhibited prior to hospitalization. This reasoning, that confinement is enough, is probably why the practice of putting the psychiatrically ill family member in the outhouse in the back is still legitimized in some of the third world. Any hospital, civil or forensic, with this treatment approach would lose accreditation.

Wagging the Dog

Timing is another variable. Just ask Francis S., a longtime petty criminal with well over twenty convictions, many alcohol related, on his criminal record. Mr. S. was found not guilty by reason of insanity for a disorderly conduct conviction, and was poorly compliant with alcohol aftercare when released. Although without incident, Mr. S. was recommitted just days before his order of conditions was to expire. When he won the right to release in court, the state Attorney General issued a press release referring to him as a homeless mentally ill drug abuser, just weeks after the arrest of a highly visible and abusive crack addict who was harassing local residents while panhandling. The release was overturned by the Court of Appeals.

The impact of media attention was not lost on Attorney Harkavy, who represented Francis S. "When you have The New York Times referring to people as 'walking time bombs,' how easy is it going to be to educate the court?" he reflected. Continued Harkavy, "Judges make their decisions based upon lay opinions.. .emphasis is placed on the underlying crime more than the mental state the patient is currently in." This at a time where in some jurisdictions, according to Harkavy, "Independence of the judiciary is under attack by politicians. There is a reluctance to take a chance."

The press is indeed the missing link. And institutional mental health, despite the benefit of being informed, often meekly allows fear of the press to dictate release considerations. Too many institutions make decisions to not recommend release based on fear of the unknown future media headline; and if the hospital hasn't the guts to support the recommendations of the treating physician, why should the court?

Reform of disposition and retention laws, according to Mr. Steadman and his colleagues, has not resulted in considerably longer institutionalization than before; but the researchers still found that murder acquittees serve, on the average, as long as those convicted of charges. However, New York acquittees serve twice as long as counterparts who are convicted of other violent crimes; NGRI acquittees charged with non-violent crimes serve four times as long (Before and After Hinckley: Evaluating Insanity Defense Reform p. 98). In the group's analysis of the California system, fifty percent of those hospitalized after non-violent offenses were still there over three years later—ten times as long the median stay as those convicted of non-violent offenses (Id. page 58).

---

---

This might lead the reader to conclude that the insanity defense is reserved for only the most serious crimes. But in research published by Callahan, Steadman, McGreevy, and Robbins (Bulletin of the American Academy of Psychiatry and the Law (1991) 19:331), fifty percent of insanity acquittees in eight states studied were charged with non-violent crimes. This is one reason why one of the most striking features one encounters when visiting a forensic secure facility is how behind all the bars, pass codes, armed guards and metal detectors, many of the patients appear to be more benign than on the wards of civil psychiatric hospitals.

Still, recommitment statutes allow for annual or biennial review, perhaps more of an opportunity than a convicted prisoner might be given. Hopes dashed can alienate an acquittee from the very staff that is meant to help him. In one case I am consulting, an acquittee responded to his recommitment by suing the hospital for various examples of malpractice; and the hospital is of course more invested in saying he is more dangerous than ever. He will not be going anywhere soon.

Others succumb to frustration in more heartbreaking ways. Jimmy L. was 15 years old and high on PCP when he pushed his brother off a roof. His suspiciousness and withdrawal after arrest gave enough of an impression that he might be schizophrenic. He was found not guilty by reason of insanity. Within months, it was clear to most that his behavior problems were personality related, and that a drug induced psychosis had mimicked schizophrenia. But he was not schizophrenic. He matured in the institutional setting, and was eventually given passes to go into the city. But twenty years later, and three years since any violence directed against a fellow inmate, Jimmy was turned down in his request for conditional release. "What else am I supposed to show the hospital?" he related with frustration. "I follow the rules, I show them I can go out to the city, I'm not getting high, I go to A.A. . . . I don't know." Within months, he had lost all privileges, and has been transferred to a secure facility with no apparent anticipation of release. It is a system that offers hope, then pulls it away, then expects acquittees to tolerate frustration as a sign of clinical improvement—a standard not even expected of prison inmates.

---

---

An Alternative: Guilty but Insane

Is there a more humane approach? Perhaps we should change the insanity defense altogether from being one affirming a lack of guilt to one of Guilty But Insane. This is not to be confused with the pilloried Guilty But Mentally Ill, in which defendants are committed to a hospital for as long as treatment is needed, then transferred to prison to serve the rest of their term.

In our proposed Guilty But Insane track, which most closely resembles a Not Guilty By Reason of Insanity finding, those who prove to have had a legitimate major mental disorder at the time of the offense would be committed to hospitals as they are now. They could be eligible for early release from these institutions upon offering proof they are no longer dangerous or actively mentally ill, or that the hospital is providing synthetic sanity by ensuring their medication compliance. If courts truly adhere to a standard where preponderance of evidence were sufficient, this would be effective and fair. Those who later prove to have been suffering from drug induced conditions of to have faked their mental incapacity and lack of responsibility would be shifted back to the prison to complete the duration of their sentence. This would keep the population of hospitals more appropriately psychiatric and enhance the therapeutic climate. Those shifted back to prison would serve no more than they would if found guilty; but there would be far less incentive to pursue the NGRI track.

Professor Michael Perlin called attention to courts fear of fakers who could cheat the system and earn quick release (The Jurisprudence of the Insanity Defense, 1994 Carolina Press p 381). A Guilty But Insane solution would obviate public cynicism about the ill being excused for their behavior that today impacts judicial decision making, and allow for greater security against those who are misdiagnosed or may cheat the system, although this is far less common than courts and the public realize. Additionally, it brings the view of mentally ill away from the 'separate class' mentality that marked the punitive approach of Jones. Conditional release provisions could be structured as they are now, with requirements to participate in outpatient treatment or drug counseling.

Clear legislative guidelines should be established as to what dangerous behavior represents while in the hospital. Continued commitment of the recovered acquittee should only be allowed if the community supports are extremely poor or risk for relapse and noncompliance is high. And for those recommended for retention by virtue of continued presence of mental illness and dangerousness, a concerted treatment plan beyond custodial care should be a precondition—the absence only suggests that whatever the patient has, it is best treated somewhere else.

In his dissent in Jones, Justice Brennan opined that the burden to commit the acquittee once he has been confined for the maximum sentence for a conviction should be the same as the civil standard. This makes sense and is fair. If the crime were truly representative of dangerousness, and behavior during confinement worrisome as well, then the State would have no difficulty meeting its burden under these guidelines.

Certainly personality disorders have not been regarded as psychiatric illnesses for purposes of insanity defenses—should they therefore for recommitment proceedings? Fairness warrants consistency. And the dangerous psychiatrically ill should not be subjected to daily life with antisocial personalities who may have entered the mental health system by being intoxicated, or suffering peculiar dissociative symptoms at the time of their offense.

Defendants who committed especially heinous crimes, such as Hinckley, would be no less disadvantaged by these reforms. Those most likely to be affected would be acquittees charged with lesser offenses; but the current climate makes such reform unlikely.

Perhaps John Hinckley is improved, and remorseful as his attorney describes—although the court will not to be convinced of this anytime soon. "What is Hinckley's endpoint?" the attorney was asked. "There's a graveyard behind the hospital, and that is his endpoint," he replied.