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Thursday, July 12, 2018

The Insanity Defense: Good v. Evil or Sane v. Insane?

     On July 21, 2011, 32-year-old Anders Behring Breivik set off a bomb in Oslo, Norway that killed eight. Breivik, later that day, opened fire at a summer camp on Utoya Island, killing sixty-nine people, most of whom were children. Breivik's bombing and shooting spree also injured 151 in the city and on the island. The mass murderer surrendered without incident to a SWAT team that showed incredible restraint.

     After confessing to the bombing and shooting spree, Breivik told his interrogators that he was a commander of a resistance movement aimng to overthrow European governments and replace them with "patriotic" regimes that will deport Muslim immigrants.

     A pair of psychiatrists, on thirteen visits, spent 36 hours talking with Breivik. The doctors concluded that because Breivik was a paranoid schizophrenic, he was not a proper candidate for conviction and imprisonment as a criminal. A forensic panel representing the district court will make the final ruling on Breivik's mental condition and whether he should be brought to justice as a mass murderer.

     As it stands, because Breivik "lost touch with reality," the criminal justice system in Norway will treat the murders not as crimes, but as symptoms of this killer's mental illness. These victims, in other words, were killed by paranoid schizophrenia, not an evil, cold-blooded murderer.

     Norwegian critics of the decision not to try Breivik as a criminal defendant called attention to the extensive planning and gruesome efficiency characterizing Breivik's slaughter of his helpless victims. In the opinion of the Swedish forensic psychiatrist Anders Forsman, Breivik carried out his murderous mission in a rational way. He was, in Forsman's words, an "efficient killing machine."

     Norway has a rather lenient legal insanity defense doctrine that merely requires that a defendant be in a state of psychosis during the commission of the crime. It is therefore not surprising that Norway has a tradition of not criminally punishing defendants who are adjudicated mentally ill.

     Had Anders Breivik embarked on his murderous rampage in the United States, he'd have almost no chance of successfully raising the insanity defense. This is because in America, most states operate under the M'Naghten Rule. Under this doctrine of legal insanity, a criminal defendant is not insane unless: "At the time of the commission of the act, the defendant was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong." Popularly referred to as the "right/wrong test," a defense attorney has to prove by a preponderance of the evidence, that his client did not realize the act in question was wrong. Regardless of how mentally ill defendants are, almost all of them knew that what they were doing was wrong. In other words, in most states, merely because a criminal defendant has been diagnosed a paranoid schizophrenic is not enough. For this reason, very few defendants succeed in being found not guilty by reason of insanity. In the United States, the law requires a degree of mental impairment that in reality doesn't exist.

     Serial killers like Ted Bundy are rarely found not guilty by reason of insanity. The Unabomber Ted Kaczinsky, diagnosed as a paranoid schizophrenic, was convicted of murder in 1996 and sent to prison. It is doubtful that Jared Loughner, the mental case that wounded Congresswoman Gabrielle Giffords and killed six others, will end up in a facility for the criminally insane instead of prison.

     In the United States, jurors are not comfortable with finding mentally ill serial killers and mass murderers not guilty for any reason. They don't completely trust the social scientific findings of psychiatrists who testify for the defense. And jurors don't want to replace the concept of good and evil with sane and insane. Serial killers and mass murderers, to jurors, while obviously mentally ill, are still evil and dangerous people. In America, evil people who murder, are going to be punished criminally. That doesn't mean, however, that they don't receive medical attention in prison. But it does mean, whether "rehabilitated" or not, they are never getting out.

     John Hinckley, Jr. the nut who shot President Ronald Reagan in 1981, was found not guilty by reason of insanity. This is because he was tried in federal court which applies a different standard of legal insanity. In 2016, Hinckley's was released permanently from the mental institution so he could live with or near his mother in Williamsburg, Virginia. The man who tried to kill the president of the United States is a free man.  

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