UNDERSTANDING THE USE OF THE INSANITY DEFENSE

Journal of Clinical Psychology, (1993) 49, 435-440 UNDERSTANDING THE USE OF THE
INSANITY DEFENSE GEORGE L. BLAU, HUGH McGINLEY AND RICHARD PASEWARK University of
Wyoming Psychologists often are called upon to give their opinion about a legal
concept, the insanity plea.  Criminal cases that involve the insanity plea
consistently receive the attention of the media and of legislators who contemplate
restricting the use of the defense, yet there is little nationwide information on
the use and possible abuse of the insanity defense.  This paper reviews what little
is known and suggests that in order to make psychologically and socially
responsible decisions, more information is needed on the use and success of the
plea.   The insanity defense commonly is believed to be used too frequently in the
courts and is regarded by some individuals as a way in which a guilty person can
escape punishment.  Lawyers and psychologists have both a vested interest in
understanding the use of the insanity defense and a concern about responsible
legislation related to the defense.  Clinical psychologists not only provide
testimony about a defendant's insanity, but also may be involved in the data
collection process and may be consulted about the use of the plea within their
state or nationally. The legal system functions to promote an enduring society; it
is the stability keel of the ship of society.  Laws reflect the general values of
society, but all too often they are subject to the capricious whims of what may be
called "public opinion." Against this background, psychologists are faced with
testifying or providing their professional opinion based with regard to a concept
that, while it may look familiar, is a legal construct. From M'Naghthen's attempt
to shoot the Prime Minister of England to Hinkley's attempt to shoot the President
of the United States, the insanity defense is an example of a legal principle that
has been misunderstood and misinterpreted by society and perhaps by the legal and
mental health professions. Traditional legal analysis states that a crime, in order
to be a crime, must have three elements.  A guilty mind, the mens rea; a proscribed
act, the actus reus; and the prescribed punishment.  Without each of these three
elements there can be no crime in a traditional analysis, and, accordingly, an
individual cannot be found guilty of a nonexistent crime.  For example, in Wyoming
several years ago, the then attorney general was accused of malfeasance in office,
an old common-law crime from Wyoming's territorial days.  The prosecution dismissed
the charges because even though the "crime" existed, there was no punishment
associated with the crime. Similarly, in classic law school tradition, if one
smuggles French lace from France believing it to be a crime and, in fact, it is
not, there is no crime.  There is mens rea, guilty mind, but no proscribed act. 
Correspondingly, if one takes French lace from France believing it to be allowed
and, in fact, it is not allowed, there exists a proscribed act, but no mens rea
and, thus, no crime.  While there are exceptions to this analysis, such as crimes
for which no mens rea is required, this basic analysis forms the foundation for any
discussion of the insanity defense.       Correspondence and reprint requests
should be addressed to George L. Blau, Ph.D., J. D., Department of Psychology, Box
3415~-University Station, Laramie, WY 82071.   435     The question is, no matter
the exact wording of the defense, did the alleged criminal have a requisite guilty
mind?  The traditional analysis follows from the idea that a child or anyone
without the capacity to form the requisite guilty mind cannot be guilty of the
proscribed act.  Thus, similarly, the insane are believed to be unable to form the
guilty mind and, according to class law analysis, there is no crime because of the
defense; the insane person is not guilty by reason of insanity. While any
spectacular crime garners the attention of the media and subsequent public
attention, the use of the insanity defense in any crime attracts additional
attention.  This occurs especially when the defendant appears not to have any other
defense and appears to be using the insanity defense to avoid culpability.  This
increased public attention, coupled with the Barnum effect (where an unusual event
stands out and is remembered), potentially leads to the idea that the insanity
defense is used too often and is too often successful. Understandably, questions
arise about the actual use of the insanity defense: "How is the insanity defense
used?" "Is it misused?" and "Is it successful?" From a legal perspective, the
interest in the defense is in its practical use.  From a psychological perspective,
the interest is that, at least in part, the defense relies on the psychological
functioning of an accused individual.  Finally, from a societal perspective, the
interest seems to lie in the restriction of the defense or in creating a non-
defense, such as guilty but mentally ill, in which there is a crime, but the guilty
individual is treated differently as a result of a mental condition.   THE
RATIONALE OF THE PAPER   In any scientific endeavor in which one wishes to organize
and make sense of the subject, one starts with data.  Whereas it would be expected
that information on the use of the insanity defense would be widely available, the
converse is true. To understand why there is this lack of information, it is
helpful to divide the legal process into three arbitrary, but commonly useful
stages.  First, a number of preliminary steps take place before formal pleas are
entered, such as pre-indictment notification and arrest.  Those cases that are
resolved at an early stage are not recorded as employing the insanity defense and
do not reflect the use of the insanity defense. A second stage is comprised of
those cases that go beyond preliminary steps, but are resolved before trial.  In
these cases, the defense is formally entered into court records, and it would be
expected that these records would be available for study. In the last stage,
ignoring appeals, the case is decided by a trial, and a determination can be made
as to whether the insanity defense was successful.  This third stage is the only
stage at which an empirical determination of the success of the insanity defense
can be estimated.  While it would be grossly misleading to base an understanding of
the criminal justice ~system's use of the insanity defense on only the cases that
proceeded to verdict alone, even this stage limits an understanding if information
is not available both for the incidence of the defense and the success of the
defense at trial. In an attempt to collect such information, McGinley and Pasewark
(1989) repeated their earlier attempt to assemble nationwide data on the frequency
with which the insanity plea is entered and the number of insanity adjudications
rendered.  In the study, forensic directors in each state and the District Columbia
were contacted by a mail survey that solicited data relative to the frequency of
insanity pleas and insanity verdicts in their jurisdictions.  If the state forensic
director was not able to provide the information desired, she/he was asked to
indicate, if known, an alternate source for these data.  In each case in which
another source was provided (e.g., Court Administrator, Department of Corrections),
this individual or agency was contacted.  Of the 51 jurisdictions involved, 4 did
not respond.   Insanity Defense                                     437   NOT
GUILTY By REASON OF INSANITY (NGRI) DATA AVAILABLE   According to McGinley and
Pasewark, only 5 jurisdictions, in contrast to 10 in the prior survey conducted by
Pasewark and McGinley (1985), reported the number of defendants who utilized the
insanity defense.  These were: Colorado-45; Minnesota-59; Michigan-1215; Maine-200;
and Wyoming-100. Basically, survey results from these five jurisdictions reinforce
the belief that the insanity plea continues to be relatively rare in criminal
trials.  Additionally, data suggest that the frequency with which the plea is
entered varies markedly for unknown reasons among jurisdictions.  Colorado had 45
insanity pleas with an incidence of I plea for each 4,968 arrests.  Minnesota had
59 insanity pleas with an incidence of I plea for each 2,938 arrests.  Michigan
experienced 1,215 pleas resulting in I plea for each 476 arrests.  Maine with
42,739 arrests had I plea per 214 arrests.  Wyoming with 20,407 arrests witnessed
100 insanity pleas and I plea per 204 arrests.   SUCCESS OF INSANITY PLEA ONCE MADE
In similar fashion, McGinley and Pasewark found a variation in the "success" of the
plea, as reported by the five jurisdictions able to provide data upon both the
frequency of the plea used and the number of insanity verdicts.  In Colorado, 44~%
of defendants who made the plea were adjudicated insane, whereas the rates for
Michigan, Maine, Minnesota and Wyoming were 70~7o, 40~7o, 30~7o, and 20~7o,
respectively Essentially, it appears, from the data provided by McGinley and
Pasewark, that rather than having available nationwide data or data generated in a
consistent fashion by a given state, policy makers must still remain largely
dependent upon limited and sporadic studies conducted by individual researchers or
government agencies.   DISCUSSION   The data that are reported in the survey and
the data reported by authors of studies of specific jurisdiction strongly suggest
that the insanity plea is seldom made in criminal trials and that, once the plea is
made, few defendants are actually adjudicated insane.  Yet, the plea continues to
capture the attention, and criticism, of those who write in the legal and
psychiatric fields, legislators, the general public, and the mass media.  Great
efforts and funding are expended by legislative commissions
in an attempt to revise statutes that govern the defense.  Remarkably, these
endeavors seem to be based upon severely limited data. Even though there may be
great interest in the phenomenon of the insanity plea, this interest has not
generated much of a demand for empirically based information, or if, indeed, a
demand for such information is present, it has led to the collection of only
limited information.   Data Required   The question is "What kind of information is
needed?" in order to make informed decisions about the incidence and use of the
defense.  The minimal data about the insanity and alternate pleas that should be
readily available are: (1) the number of persons who originally enter the plea; (2)
the number of persons who maintain the plea through trial; (3) the reasons for
dropping the plea; (4) the number of persons who are adjudicated in accord with the
plea; (5) the category of crime for which the defendant is charged who enters the
plea; (6) the category of crime for which the defendant who maintains the plea is
acquitted or found guilty; and (7) the physical disposition of the successful
defendant (release or commitment for ~NGRI; fine, probation, or sentence for Guilty
But Mentally III ~(GBMI)).  It appears that with the exception of item 3, these
data are either already collected or could be collected by including them in the
Uniform Crime Reporting Program. As evidenced by the attempts to collect nation-
wide data, it appears that the routine collection of insanity defense related data
varies greatly among jurisdictions.  The initial problem faced in the collection of
these data is identifying defendants who have entered the insanity plea.  Thus, in
states that have a single site or agency responsible for performing psychiatric
evaluations on the issue of insanity, such as Hawaii and Wyoming, basic data are
relatively easy to collect.  In states such as New York and Washington, where there
appears to be no single entity concerned with issues related to insanity, the
problem of collecting basic insanity data is difficult if not insurmountable.  In
the extreme case, data collection efforts could require an examination of the
summary records of individual courts and, perhaps, of each criminal court action.
Theoretically at least, a well-funded team of researchers could obtain most of
these minimal data.  More realistically, as mentioned previously, insanity defense
related data could be included in the Uniform Crime Reporting Program.  However, in
the absence of this ideal situation, state mental health agencies could provide
better information than currently is available if they were required to report
routinely to Forensic Directors summary data about insanity plea ~acquittees who
have been committed to their care.  In comparison to a complete information bank
about the use of the insanity plea, these data would be extremely limited, but
would be superior to what appears to be available presently.     To achieve an
understanding of the use of the insanity plea, there needs to be information about
defendants who initially enter the plea, but then drop it or for whom charges are
dismissed.  That is, to understand the "success" of the plea it is important to
know both the incidence of NGRI adjudications and incidences in which the initial
plea of ~NGRI altered the litigation process.  For example, Randolph and Pasewark
(1983) conducted archival research in which they studied records on 68 defendants
who had entered the insanity plea in Wyoming during the years 1967 and 1968.  Of
these 68 defendants, 7 retained the insanity plea, 34 changed to a guilty plea, 3
changed to a plea of not guilty, I pleaded nolo contendere (no contest to the
charges), 16 had the charges against them dismissed, 4 of the cases were nolle
prosequi (dismissed by the prosecutor), 2 cases were not known, and I jumped bail
with whereabouts unknown.  Of the 7 defendants who kept the insanity plea through
trial, 2 were adjudicated NGRI. The "success" of the NGRI could be viewed as 29%,
that is, of the 7 defendants who actually carried their insanity plea through
trial, 2 were "successful" in that the outcome of the trial supported the defense. 
However, how many of the other defendants may have benefited in some way from the
initial entry of the insanity plea?  More specifically, what is the benefit to the
defendant of using the insanity plea to achieve an agreed-upon plea that reflects
something less than the original charge? Although investigators mention the use of
the insanity plea in plea bargaining or negotiated dispositions, empirical data are
very difficult to obtain.  In order to appreciate the use of the insanity defense,
it is necessary to understand how it is used in the criminal justice system.
Defense lawyers are well aware of the benefit to the defendant of any defense, and
the insanity defense is no exception.  Although plea bargaining data never will be
verified experimentally because of their non-public nature, they may be estimated
through direct questioning of attorneys. McGinley and Blau (1986) conducted a
statewide survey of practicing attorneys in Wyoming.  Sixty-six defense attorneys
and 46 prosecuting attorneys responded that they had been involved in at least one
criminal case that involved the insanity plea during the preceding 5 years. 
Seventy-eight percent of the defense attorneys and 64% of the   Insanity
Defense                                        439   prosecutors reported that the
insanity defense was used successfully to the advantage of the defendant in cases
in which negotiated disposition resolved the matter. The question arises, why would
the insanity plea be useful as a plea bargaining tool? Based on anecdotal evidence
of how criminal defense lawyers use the insanity defense, it was hypothesized that
it was being used as a bargaining chip that could lead to a disposition more
favorable to the criminal.  Because less than 10% of criminal cases go to trial,
most cases result in some alternative negotiated disposition such that the insanity
defense is not used explicitly or is dismissed during processing during the
criminal justice process.     For example, in one recent case, the daughter of a
wealthy Midwestern executive was charged with five counts of felony shoplifting in
a small western resort area.  She had a history of anorexia nervosa, and the facts
that surrounded her crimes were consistent with an individual who was crying for
help as opposed to an individual who was taking items for profit or some other
criminal motive.  For example, she took a bracelet from the head of housekeeping
and then, in a girl's dorm provided for employee housing, blatantly left the
notable and distinctive bracelet out on her dresser which was visible from the
hallway while the door was kept open. Although there were other examples of the
girl's behavior that justified employing the insanity defense, the prosecutor in
this small western town was notorious for always going to trial with the crime as
charged.  The result in this case was a cognitive stalemate of sorts, in which the
prosecutor insisted on going to trial on several felony counts against the young
lady, and the defense adamantly and rightfully evoked the insanity defense. The
result of this illustrative example is one that is repeated over and over.  This
18-year-old girl, who may have been incapable of forming the mens rea for the
felony charges, ended up pleading to a misdemeanor.  With the felony charges
dropped, she was required to enter hospitalization for her condition (anorexia
nervosa), return the property taken, and personally pay back the full amount
necessary for restitution.  What is germane to this discussion is the fact that the
NGRI plea never appealed as a statistic even though it materially influenced the
outcome of the case.   CONCLUSION   Understanding the insanity plea is important to
psychologists who are called upon frequently to testify about a defendant's mental
status under the label of insanity.  As does the carpenter who understands the use
of a level, the sage psychologist understands not only the plea, but the relative
use and success of the plea.  As McGinley and Blau (1986) have documented, the
plea, although not frequently used or successful at trial, may be used in
negotiated dispositions in order to achieve some benefit to the defendant. The
insanity defense, as is any defense, is important to a society based on rules.  As
a result, it is critical to study and gather additional information before
modification by legislatures that often base decisions on little or inadequate
information. When questions about the disposition of defendants who initially enter
the insanity plea can be answered, then the use of the plea will be better
understood, and it is possible that a better understanding of the use of the plea
will provide legislators a basis for insanity plea related legislation that is not
based upon rumor and personal opinion.   REFERENCES                   McG~INLEY, H.
& BLAU, G. L. ) 1986).  The success of the insanity plea: A survey of
attorneys.  Paper presented at the meeting of the American Psychology and Law
Society, Tucson, AZ.             McGINLEY, H., & PASEWARK, R. A. (1989). 
National survey of the frequency and success of the insanity and alternate pleas. 
Journal of Psychiatry and Law, 15, 205~-221.                     PASEWARK, R. A.,
& McGINLEY, H. (1985).  Insanity plea: National survey of frequency and
success.  Journal of Psychiatry and Law, 13, 101~-108.                   RANDOLPH,
R. L., & ~PASEWARK, R. A. (1983).  Characteristics, dispositions, and
subsequent arrests of defendants pleading insanity in a rural state.  Journal of
Psychiatry and Law, 11, 345-360.    

Bradley Ruben Denies Jaswinder Lally's Title Defense, Wins Fourth Career WSOP
Bracelet

You can follow the 2022 World Series of Poker on Card Player’s series landing page,
sponsored by Global Poker, the fastest growing online poker room in the world.
Check out the series schedule, as well as event recaps, news, and player
interviews. Jaswinder Lally came within one player of going back-to-back in the
World Series of Poker $1,500 buy-in dealer’s choice event. He topped a field of 307
entries in 2021 to secure the bracelet, and navigated his way through a field of
430 in 2022 to make it down to heads-up play with a title defense on the line. In
the end, Bradley Ruben emerged victorious, denying Lally to capture his fourth WSOP
gold bracelet and the top prize of $126,288. Ruben first cashed at the series back
in 2013. His first bracelet didn’t come until 2020, when he took down a $1,500 buy-
in pot-limit Omaha event during the WSOP Online festival for a career-best $220,160
payday. Less than a year later he secured his second bracelet as the champion of a
$600 no-limit hold’em PLO six-max event, adding another $69,148 in earnings. He
earned his first live bracelet at the 2021 series in Las Vegas, besting a field of
311 in the $1,500 razz event. Now, with his latest win, he became just the 65th
player in poker history to have won four or more bracelets. Incredibly, he is the
third player to achieve that feat in the past two days, following David Peters and
Scott Seiver. In addition to the hardware, Ruben also earned 720 Card Player Player
of the Year points for the win. This was his first POY-qualified cash of the year.
This event played out over the course of three days. Plenty of notables were among
the 65 to make the many, including deep runs from a trio of four-time bracelet
winners in John Monnette (36th – $3,021), Tom Schneider (21st – $4,850), and Adam
Friedman (15th – $5,993). Friedman is a WSOP dealer’s choice legend thanks to his
unbelievable back-to-back-to-back victories in the $10,000 buy-in championship
version of this format in 2018, 2019, and 2021 (the tournament was not held during
the pandemic shutdown of 2020). Day 2 came to a close after Friedman’s elimination,
with Ruben leading the remaining 14 contenders. Longtime WSOP commentator Norman
Chad was the second player to hit the rail on day 3. He ran into the pat 5 4 3 2 A
of Charles Bransford to finish 13th ($5,993). This was his second consecutive year
making a deep run in this event, having placed 21st in 2021. This score saw his
tournament earnings grow to $101,412. Five-time bracelet winner Brian Rast (12th –
$5,993) and two-time bracelet winner Marco Johnson (8th – $9,875) were among the
players to fall as the field was narrowed to the official final table of six. Ruben
made a straight and a low playing stud eight-or-better to scoop and eliminate
Bransford (6th – $17,944. Four-time bracelet winner Ben Yu scored his first
knockout at the final table when his rundown bested the pocket aces of short stack
Jorge Walker (5th – $25,056). Yu turned trips and held from there to chip up
heading into four-handed play. Ruben slid to the bottom of the leaderboard during
shorthanded play, but mounted a comeback that was capped off by his elimination of
Yu. Ruben made a better two pair in stud hi-lo to send Yu home with $35,793. Ruben
then won a big pot in five-card draw to move into the lead. Bracelet winner Naoya
Kihara got the last of his chips in playing the same game. He held pocket jacks and
drew three, while Ruben drew three with pocket aces. Kihara was unable to improve
on his pair and was knocked out in third place ($52,282). Heads-up play began with
Ruben holding nearly a 3:1 lead over Lally. The gap grew before the final hand
arrived while playing Omaha eight-or-better. Lally got the last of his stack in
with Q Q 8 7 . Ruben held A 9 5 3 . The board ran out A K J 4 7 to give Ruben a
flush and a 7-5-4-3-A low for a scoop. Lally’s incredible run at a title defense
ended with him earning $78,048 as the runner-up. Here is a look at the payouts and
POY points awarded at the final table: Place Player Earnings (USD) POY Points 1
Bradley Ruben $126,288 720 2 Jaswinder Lally $78,048 600 3 Naoya Kihara $52,282 480
4 Ben Yu $35,793 360 5 Jorge Walker $25,056 300 6 Charles Bransford $17,944 240
Winner photo provided by WSOP. Credit: Rachel Kay Miller. You can follow the 2022
World Series of Poker on Card Player’s series landing page, sponsored by Global
Poker, the fastest growing online poker room in the world. Check out the series
schedule, as well as event recaps, news, and player interviews.

Sales of Personal Safety Devices Soaring as People Stock Up for Self-Defense

If you purchase an independently reviewed product or service through a link on our

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solution, that would give people more options to take action earlier in a moment of
uncertainty,” say Fitzgerald and Dickhaus de Zarraga. “[But] Flare’s mission is
simple: to put ourselves out of business and create a world where safety products
like Flare are no longer needed.”