Regrettably, in today’s nonstop barrage of the 24-hour news cycle, it does not take long for a fresh tragedy to occur brought on by what appears to be a mentally disturbed person causing the headline. After the initial shock, our common reaction goes something like, “That person must be crazy!” Yet, almost at the same time if we think that suspect will use the Insanity Defense, they are looked at with contempt. That kind of reaction underscores the love-hate relationship the public has with the Not Guilty by Reason of Insanity (NGRI) defense. This ambivalence is in part driven by the indelibly etched popular misconceptions about NGRI that refuse to die. The tenacious persistence of these myths are in no doubt propelled by just a few sensational, highly-publicized cases. This blog piece will address some of these popular, but erroneous, ideas about the Insanity Defense.
Myth #1: The Insanity Defense is overused.
This is not true despite countless research studies, conducted across years, showing just the opposite. Ewing (2008) estimates that, “less than 1% of all criminal cases,” employ the insanity defense. Other research estimates that it is used in only .05% of cases.
Myth #2: It is easy to prove insanity.
In order to be acquitted with the NGRI defense, for example in New Jersey, it must be demonstrated by a preponderance of the evidence, that at the time of the crime the suspect 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.”
Of the exceedingly small percentage of crimes asserting the Insanity Defense, only about 1 in 4 are successful in a NGRI finding, which translates into .025% of all criminal cases. The infinitesimally small success rate, when compared to the misperception that it is an easy, overused defense, shows the lasting impact of but a few dramatic, easily-recalled, salient cases in which it was successfully employed.
Myth #3: The insanity defense is used only in murder cases.
While about 1/3 of the time the Insanity Defense is attempted involves murder, the remaining do not involve a victim’s death. Furthermore, those charged with murder pleading insanity are no more successful asserting this defense than those who are charged with other crimes.
Myth #4: The successful NGRI defendant is quickly released from custody.
This is not only false, but often the opposite is true. NGRI acquittees are remanded to locked forensic psychiatric hospitals. The seriousness of the crime often predicts length of the hospitalization across studies. The length of stay is further increased by perceived dangerousness. Some NGRI acquittees can spend as much as double the time in such locked forensic psychiatric institutions. In New Jersey, if such a defendant’s “insanity continues,” they can be subject to community supervision for life.
Myth #5: Defendant’s using the Insanity Defense are faking.
This goes with the cliché’, “He’s trying to get away with murder!” Research has suggested that there is adequate psychiatric diagnostic agreement among Experts examining the same suspect. However, the agreement as to whether or not they were psycho-legally “insane” at the time of the offense was only 55%. This finding implies that the Fakers are easily detected, but that the application of the psycho-legal standard in the field among forensic mental health practitioners requires further work.
Psychologists like me use structured professional measures to help assess the suspect’s state of mind at the time of the crime. It is a challenging and important kind of evaluation to perform. In consideration of all these facts when contrasted with the myths, the eminent Forensic Psychologist Charles Ewing channeled his inner Yogi Berra and quipped, “You have to be crazy to plead insanity!” (Ewing, 2008, p. xv).
Ewing, C. P. (2008). Insanity: Murder, madness, and the law. New York, NY: Oxford University Press.
Gowensmith, W. N., Murrie, D. C., & Boccaccini, M. T. (2013). How reliable are forensic evaluations of legal sanity? Law and Human Behavior, 37(2), 98–106. http://doi.org/10.1037/lhb0000001
Silver, E., Cirincione, C., & Steadman, H. J. (1994). Demythologizing inaccurate perceptions of the insanity defense. Law and Human Behavior, 18, 63–70. doi:10.1007/BF01499144
White, M. D. (2017). The insanity defense: Multidisciplinary views on its history, trends, and controversies. Santa Barbara, CA: Praeger, an imprint of ABC-CLIO, LLC