posted by Patrick H. Moore

We’ve all heard of the Insanity Defense but how does it actually work? Is it a valid defense? Will it keep you out of prison if you shoot and kill someone while under the influence of insanity?

These are valid questions which are particularly important in the James Holmes Aurora Theater case. As you recall, James Holmes, a promising Ph.D. student at the University of Colorado, shot and killed 12 individuals and wounded 59 others on July 20, 2012. It was, by any standard, a truly horrible crime. In most states, if a defendant is claiming innocence by reason of insanity, which is what Holmes reportedly intends to do, he/she and the defense team must prove conclusively that the defendant was insane at the time of the crime.

In Colorado, however, the Prosecution must prove that a defendant claiming insanity as a defense was sane when he did the dirty deed. The Holmes prosecutors face an even harder task because they must prove Holmes was sane without having their own experts examine him.

It’s burden of proof on steroids,” said Marcellus McRae, a former federal prosecutor now in private trial attorney in Los Angeles. “It’s totally subjective. It’s not like proving somebody pulled the trigger. That’s objective.”

 Clearly, the case against Holmes promises to focus on his mental health. And just imagine the outcry of rage that will ensue if Holmes is somehow acquitted based on his mental state at the time he committed the crime.

Although we cannot predict what will happen in the Holmes trial, it is interesting to trace the history of the insanity defense. The case of John  Hinckley, Jr., the man who shot former President Reagan is of special interest. In an article on Frontline, brings us the following:

The proposition that some criminal defendants should not be held responsible for their actions by reason of their mental state has been well established in Anglo-American law for centuries. As early as 1581, a legal treatise distinguished between those who understood the difference between good and evil and those who did not:

 If a madman or a natural fool, or a lunatic in the time of his lunacy do [kill a man], this is no felonious act for they cannot be said to have any understanding will.

 By the 18th century, the British courts had elaborated on this distinction and developed what became known as the “wild beast” test: If a defendant was so bereft of sanity that he understood the ramifications of his behavior “no more than in an infant, a brute, or a wild beast,” he would not be held responsible for his crimes.


peelThe guidelines for determining the criminal responsibility of defendants invoking the insanity defense were codified in the British courts 1843 in the Daniel M’Naughten case.  The defendant, a Scottish woodcutter, murdered the Secretary to the Prime Minister, Sit Robert Peel, in an unsuccessful attempt to assassinate the Prime Minister himself. M’Naughten’s madness took the form of his believing that the Prime Minister was responsible for his financial and personal misfortunes.  At his trial, nine witnesses testified to the fact that he was insane, and the jury acquitted him, finding him “not guilty by reason of insanity.”

Queen Victoria was appalled by the verdict and insisted the House of Lords review it. They reversed the jury’s decision, apparently on the grounds that insane or otherwise, M’Naughten knew his actions were wrong at the time he committed them. So this became the standard: Even if it can be proven that you were insane at the time of the crime, the insanity defense is nonetheless ineffective if you knew that what you were doing was wrong when you did it.

courtThis is clearly, like most issues concerning criminal trials, highly subjective. Nonetheless,the so-called M’Naughten rule became the standard and was followed with almost no modification by American courts and legislatures for more than 100 years, until the mid-20th century. As recently as 1998, 25 states plus the District of Columbia still used versions of the M’Naughten rule to test for legal insanity.


One of the problems with the M’Naughten rule is it fails to consider the need for impulse control.  In other words, I may know that my intended action is wrong, but may be unable to control myself. Because of this, some states have modified the M’Naughten test with an “irresistible impulse” provision, which, if invoked absolves a defendant who knows right from wrong but can’t stop himself from committing an act he knows to be wrong. (This rule of thumb is also known as the “policeman at the elbow” test: Would the defendant have committed the crime even if there were a policeman standing at his elbow?).

Naturally, as time passed, there was growing dissatisfaction with the M’Naughten test.  Legal professionals understandably wanted a more objective approach based on actual proof of mental illness. This led to  Durham v. United States. In 1954, the U.S. Court of Appeals for the District of Columbia ruled that a defendant could not be found criminally responsible “if his unlawful act was the product of mental disease or mental defect.”  This satisfied many critics for a while because it appeared to replace amorphous moral considerations with more neutral scientific determinations.

All this accomplished was to open up a new can of worms. Many felt the Durham rule was too vague and others thought it would exonerate far too many alleged guilty parties.  And what does “mental disease or defect” mean? Is it limited to out-and-out psychosis or should it include less serious conditions? Critics worried defense attorneys would start claiming alcoholism and drug addiction should excuse their clients misdeeds.  And who decides if a “mental disease or mental defect” led to the crime? Should it be a factual question for the jury, or should it be left to expert psychiatric witnesses?

The Durham rule proved vague and difficult to apply, however, and many were concerned that the broad definition would exonerate far more defendants than ever before. There was confusion over whether “mental disease or defect” should be interpreted to mean only psychosis, or any of the myriad of more minor disorders defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM). Critics worried that defendants would begin to use alcoholism or other disorders whose only symptoms were antisocial behavior as excuses for their crimes. It proved difficult to determine if the question of whether a defendant’s actions were the “product” of his disease was a factual question for the jury, or for expert psychiatric witnesses. And the rule was criticized for inadvertently granting psychiatrists and psychologists too much influence in the courtroom.

The new rule with with mounting criticism and by the early 1970’s, 22 states has explicitly rejected the Durham test. In 1972, a panel of federal judges overturned the ruling in favor of the Model Penal Code test of the American Law Institute.


The FrontLine article explains:

In 1962, the American Law Institute (A.L.I.) set out a model insanity defense statute intended, like Durham, to soften the M’Naughten standard and allow for the introduction of medical and psychiatric evidence. The standard in effect consolidates the principles of the M’Naughten “right and wrong” rule and the “irresistible impulse” test. The A.L.I. formulation provides that a defendant will not be held criminally responsible if at the time of the behavior in question “as a result of a mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.”

The A.L.I. standard gave juries far broader latitude to find defendants not guilty by reason of insanity. No longer was a defendant required to have no understanding whatsoever of the nature of his acts or the difference between right and wrong. Instead, the A.L.I. standard merely required that the defendant lacked a “substantial capacity” to understand right from wrong.

To its credit,the A.L.I. standard did exclude those defendants who only shows signs of mental illness while committing crime and appear to be sane the rest of the time. This, curiously, would seem to open the conundrum of the serial killer whose only symptom of mental illness is killing his victims.

As of 1998, the states were roughly split between the A.L.I. rule and the M’Naughten standard, with or without an irresistible impulse component.

During the ’60s and ’70s, in response to popular sentiment, legislators grew increasingly concerned with protecting the civil rights of the mentally ill. Frontline explains:

Many courts struck down laws providing for the automatic and indefinite confinement of defendants who had been acquitted by reason of insanity. The courts said that due process and equal-protection concerns required that those found not guilty but confined due to mental illness had the right to periodic reassessment of their mental health status and dangerousness. If the evaluations did not find justification for continued confinement, the defendants would be released. By the early 1980s, all but 10 state legislatures had responded to these decisions and reformed their laws to provide for such review procedures.


hinkIn 1981, John Hinckley Jr. shot then U.S. President Ronald Reagan and three others: a secret service agent, a Washington police officer, and Reagan’s press secretary James Brady. As is well-known, Hinckley claimed that he was trying to impress the actress Jodie Foster and described the  incident in a letter to The New York Times as “the greatest love offering in the history of the world. … At one time Miss Foster was a star and I was the insignificant fan. Now everything is changed. I am Napoleon and she is Josephine. I am Romeo and she is Juliet.”

The jury found Hinckley not guilty by reason of insanity. There public outcry was fierce. Huge numbers of Americans were incensed that an obviously guilty man was able to escape punishment. There were widespread calls to abolish the insanity-plea laws.


Then, of course, Congress stuck its oar into the proceedings and introduced 26 separate pieces of legislation designed to abolish or modify the insanity defense by overturning the “substantial capacity” test.  The legislative debates reflected the public’s indignation over the Hinckley decision. Sen. Strom Thurmond, displaying perhaps rare common sense, criticized the insanity defense for “exonerat[ing] a defendant who obviously planned and knew exactly what he was doing.” Sen. Dan Quayle was more outspoken, claiming that the insanity defense “pampered criminals,” and allowed them to kill “with impunity.”

The psychiatric and legal professionals naturally jumped into the fray  calling for the modification, rather than the total abolition, of the insanity defense. This spirited debate ultimately led to the Insanity Defense Reform Act of 1984 — which was in many ways a compromise:

The insanity defense was not abolished, but the A.L.I. test was discarded in favor of a stricter version which more closely resembled M’Naughten. In order to qualify, an insanity defendant must show that his mental disease or defect is “severe.” The “volitional” prong of the test, which excused a defendant who lacked the capacity to control his behavior, was eliminated. In effect, Congress returned to the 19th century “right/wrong” standard, echoing Queen Victoria’s response to the M’Naughten acquittal.

This back-to-the-future phenomenon would be almost comical were this not a serious matter.  In a not so subtle gesture, designed to make life easier for the prosecution:

Congress also adopted a number of provisions that toughened procedural barriers to a successful insanity defense. Before Hinckley, the burden of proof in federal cases was on the prosecution to prove beyond a reasonable doubt that a defendant was sane. The post-Hinckley reform legislation shifted the burden to the defendant to prove with clear and convincing evidence that he was legally insane at the time of the crime. The scope of expert psychiatric testimony was severely limited, and stricter procedures governing the hospitalization and release of insanity acquittees were adopted.


Following the lead of Congress, during the 1980’s and 1990’s, more than 30 states made changes to their insanity-defense statutes that shifted the burden and standard of proof in ways that made it far more difficult to sustain an insanity plea. In addition, many states enacted laws providing for more restrictive confinement options for those acquitted by reason of insanity. Utah, Montana, and Idaho abolished the Insanity Defense altogether.


And then, of course, to make the issue even more confusing,  the “guilty but mentally ill” (GBMI) verdict became law in many states.  This is a kind of hybrid alternative to an acquittal by reason of insanity. A defendant who receives a GBMI verdict is still considered legally guilty, but since he is mentally ill, he is entitled to receive mental health treatment while institutionalized. The Catch-22 here is if his symptoms subside, he is returned to a regular correctional facility to serve the remainder of his sentence. By 2000, at least 20 states had instituted GBMI provisions.


home plusNaturally, in the course of the James Holmes theater shooting case, there has been a great deal of legal jockeying as the parties prepare to go to trial.  Holes’ lawyers have apparently stated that their client is willing to enter a straight-up plea of guilty in return for a life sentence. The prosecutors, predictably enough, will have no part of this, and have announced their intention of seeking the death penalty, thus paving the way for a trial in which the Insanity Defense will be front and center. The prosecution will have the unenviable task of proving that Holmes was sane at the time of the murders. It they succeed and gain 1st Degree Murder convictions, he will almost certainly receive the death penalty during the sentencing phase of the trial.

If, on the other hand, the jury finds Holmes not guilty by reason of insanity, according to the NY Daily News, he could, in theory, one day be released from confinement:

If the jury finds him not guilty by reason of insanity, he would avoid prison or execution. Even though he could be sent to the state mental hospital indefinitely, he might be released someday if doctors find he is no longer insane. But under Colorado law, an insanity plea means prosecutors would have access to potentially incriminating evidence such as mental health records.

Well, it’s a pretty sure bet that the odds are against James Holmes ever being released from confinement. But, given the state of the law in Colorado, there’s no guarantee that the prosecution will succeed in proving that Holmes was sane at the time of the shootings. This one is going to be interesting. And considering the fact that Holmes was once a promising Ph.D. candidate, one can’t help but wonder whether, as he was busily stockpiling his weapons, he took time to peruse the Colorado Insanity Defense standards…


4 Responses to Colorado’s Bizarre Insanity Defense Law Means Aurora Shooter May Get Away with Murder

  1. BJW Nashe says:

    I would not want to the job of trying to prove that James Holmes was sane at the time of his shooting rampage. Good luck with that one.

    I recall that the Dan White “twinkie defense” was seen as a scandalous event in American legal history.

    Actually, the “guilty while mentally ill” approach seems to have some merit. Sort of like “driving while intoxicated.” Sure, you’re not in your right mind; but you’re still responsible for driving.

    • Patrick H. Moore says:

      Yes, it appears that it will be no easy task for the D.A. to prove Holmes was sane. We’ll see what happens.

      I remember the Dan White “twinkie defense” case. That does seem to have been a low point in American jurisprudence. Might be a good case to research for post purposes while watching the Holmes case.

  2. Kate says:

    Holmes is NOT going to get away with anything. He will be executed. I have no doubt about this. Colorado’s Victims Rights laws counterbalance any insanity defense. If the jury finds him guilty he will die. That’s why his lawyers offered life in jail. Arapahoe County has the only people on death row in the state.

    • PatrickHMoore says:

      You may be right and time will tell. I do know that Colorado is an odd state full of sharp contrasts: liberal/conservative; rich/poor and so forth.

      THX for your comment.

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