A Case from Canada and the Trouble with Insanity Pleas

I don’t intend for every post to be about mental illness and violence or crime. While I’ve said before that I think destigmatization work minimizes a very real and complex problem in the name of respectability, it is of course true that violence is not the primary—nor the most interesting—question in contemporary mental health care. But a story out today about a murder in Canada feels like a good opportunity to begin talking, just briefly, about a topic I’ll return to often: the nature of insanity pleas in the United States.

But first, the story, which I’ll quote very nearly in full, with small omissions noted:

A woman found not criminally responsible for killing a stranger in a Toronto pharmacy has been ordered detained in a mental health hospital because she lacks insight into her crime and remains a significant threat to the public, a board overseeing her case has ruled.

The Ontario Review Board — which decides if and how not criminally responsible patients should be detained — said Rohinie Bisesar considers herself a victim of her schizophrenia and blames the homicide on her illness.

“Ms. Bisesar describes herself as a good person and has a hard time understanding her role in the death of the victim,” the board wrote in a detailed decision released this month.

“Ms. Bisesar considers herself to be ready for discharge to the community at the present time, which represents a combination of limited insight and a grandiose self-appraisal, possibly as a defence mechanism, but nonetheless as an unrealistic appreciation of her circumstances.”

On Dec. 11, 2015, Bisesar was in the throes of a psychotic breakdown with untreated schizophrenia when she walked into a Shoppers Drug Mart in Toronto’s financial district and stabbed Junor in the heart with a small knife.

Court heard she suffered from severe hallucinations and delusions that manifested as a voice commanding her to harm someone. She refused treatment for years while in custody and only became fit to stand trial in April 2018.

She remains in a secure, six-bed wing at Toronto’s Centre for Addiction and Mental Health where she is in “almost complete remission” of her symptoms, due a strict regime of medication, cognitive behavioural therapy and psychotherapy, the board noted.

Her treatment team believes within the next year Bisesar “should achieve a level of stability and insight sufficient for her to be safely managed on a general unit,” with privileges that could include indirectly supervised access to the community.

Her attending psychiatrist and the lawyer for the Attorney General of Ontario noted that “if the hospital is to make a mistake with respect to assessing risk and granting unsupervised access to community, there could be catastrophic consequences.”

The board ordered Bisesar to only enter the community, where she has been attending psychotherapy programs, with hospital staff.

I suspect that many people believe that the intersection of insanity and criminal-justice—when it comes to sentencing and confinement—is a fairly straightforward matter: There is some legal concept called an “insanity defense.” If there is reason to believe that a defendant was out of their mind at the time they committed their offense, this defense can be offered. If the defendant can demonstrate insanity (perhaps to the satisfaction of a doctor or two), then they are found “not guilty by reason of insanity” and either released or, in the worst case, sent to a hospital to receive psychiatric care until they are healthy enough to return to society. There is a notion, persistent particularly on the political right but by no means exclusive to it, that this outcome is (justly or not) tantamount to “getting away with it.”

The story above is from Canada, and I’m not familiar with the particular laws governing NGRI*s there, but it is similar to quite a lot of what goes on in the United States. If anything, the difference is that the Canadian defendant appears to be experiencing what, in the US, would be a rare and best case scenario in a situation like this. There are few reasons for this:

  1. In the United States, at least, it is tremendously difficult to mount a successful insanity defense. While you might think that the question of whether or not a defendant is “crazy” (vs. sane, or vs. faking it) would be relatively easy to establish with a professional evaluation or two, nearly every insanity plea which reaches trial involves dueling prosecution and defense psychiatrists, each confident in their contrary diagnoses. Outside of plea deals, which constitute over 99% of all not guilty by reason of insanity verdicts in the United States, the madness of a criminal defendant is almost always seriously contested by the state**.

  2. While such a contest might not matter much if all the defense had to establish was ‘reasonable doubt’ (in the sense that the jury can reasonably doubt, on the basis of at least one psychiatrist’s testimony, that the defendant was definitely sane at the time of their crime), “not guilty by reason of insanity” is an affirmative defense. The accused admits that they committed the crime of which they are accused, but argues that the extenuating circumstances of their illness merits a “not guilty” verdict. However, this shifts the burden of proof to the defendant. They must demonstrate, to the satisfaction of the court, that they meet the legal definition of insanity.

  3. The legal definition of insanity itself is far more narrow than you might imagine. The particulars vary by state, but, in almost all cases, the mere fact of suffering from a serious psychiatric condition—even if uncontested by the prosecution—is not sufficient for a not guilty verdict. In almost all cases, the legal definition of insanity requires that a defendant “not know the difference between right and wrong” at the time of their crime. This is not a symptom of nearly any mental illness. To understand why this particular requirement matters, consider a case from 2018 in St. Louis: A man with schizoaffective disorder admitted to having murdered his ex-boyfriend with a samurai sword during an acute psychotic episode, believing, more or less, that the ex was an imposter who had invaded the defendant’s apartment and who constituted (in the sincere belief of the defendant) an imminent threat. Nobody disputed the reality of the defendant’s disorder, not his account of the delusion which precipitated the murder. However, police and prosecutors argued that the man did not meet the legal definition of insanity because after the murder, he attempted to keep potential witnesses from entering his apartment, and then fled the scene. These actions were taken to constitute proof that, whatever the defendant’s mental status, he “knew” he had done something wrong. Why else try to hide it? Why else try to flee? (As it happens, the history of this legal standard is fascinating, and worth a later post of its own. Suffice it to say, it had a lot to do with Republicans becoming livid when the schizophrenic John Hinkley Jr. went to a mental asylum rather than a prison after he shot President Reagan).

  4. Even a successful “not guilty by reason of insanity” plea does not typically (if nearly ever) result in release, or even remand to an ordinary psychiatric hospital. Rather, patients are sent to “forensic hospitals”, which are roughly halfway between hospitals and prisons. These places are often dangerous. Nurses working in one New York forensic hospital, for example, often suffer the highest rate of workplace injury of any public employee in their state.

  5. While forensic hospitals are meant to help patients recover—with the ostensible goal of releasing them as soon as they are deemed safely able to re-enter society—there is very little evidence to suggest that these hospitals are in any rush to rehabilitate and release their patients, nor that they typically have much desire to do so. In most states, a forensic psych ward can hold a patient for a term of years equal to the maximum possible sentence for the original crime, with an option to petition the court for even more time on top of that. It is rare, given the testimony of a doctor, for courts to deny these petitions. This is true despite no real guarantee that doctors are always telling the truth when they testify before the court. In his 2014 book “Behind the Gates of Gomorrah”, Dr. Stephen Seager — a psychiatrist at a California forensic psych hospital — admits to telling a court that an inmate has not yet made sufficient progress in overcoming his bipolar disorder, despite the fact that Dr. Seager does not believe this patient is bipolar at all. The rationalization is that Dr. Seager believes the patient to be a dangerous malingerer whose release would pose an immense risk to public safety, but one can only imagine the less just-barely-justifiable cases which aren’t making it into books. It is not uncommon for patients found “not guilty by reason of insanity” to spend far longer locked up in hospitals (which are themselves scarcely safer than prisons) than they would have spent behind bars had they been found guilty.

  6. Finally, we should recall that the vast majority of mentally ill criminal offenders do not enter this system. Each year, roughly 2,000,000 people with serious mental illness are incarcerated in the United States. An estimated 30% of prisoners suffer from some form of mental illness. The United States prison system, which is not designed to be a long-term medical caretaker, is nonetheless one of the largest providers of mental health care services in the world.

None of this is to suggest that we have no need for NGRI pleas, and no need for special facilities dedicated to the treatment of mentally ill offenders. This is not all an immense misunderstanding or case of undue “stigma”—many of these patients ought to be held until their conditions can be improved because they may be (and have, in many cases, proven themselves to be) real dangers to themselves and others. But the process as it currently exists is oblique and dysfunctional and I suspect this has something to do with the uneasy way most Americans regard the relationship between insanity and crime. While most people would no doubt acknowledge the necessity of insanity pleas, or accept, in principle, the idea that serious illness cleaves literal responsibility for a crime from proper moral responsibility (and that this cleaving ought to be reflected in our justice system), there persists this notion of “getting away with it.” There persists this notion, articulated incessantly by destimgatizers, that mental illness is “not an excuse” for poor behavior, from irritability to murder. They point out that the majority of mentally ill people are never convicted of violent crimes, and that therefore the notion that these illnesses “cause” violence is both unfair to law-abiding patients and too soft on the criminals. They are right, of course, about the general statistics. And you can detect this attitude in the case above. The article suggests that the defendant “blaming” her murder on her condition is somehow suspect, that this is some kind of deflection or excuse. But then, consider the contrary proposition. Should we look at the fact that this woman has severe schizophrenia and the fact that she committed a murder, and pretend, in the name of respectability, that these facts have nothing to do with one another? As I keep saying in this space, I don’t have a satisfying answer to these questions yet. I only know that the answers currently on offer are inadequate and incomplete.

*NGRI = “Not Guilty by Reason of Insanity”

**NB: Because this is an informal journal, it is possible—either here, or in the past, or in some future post, that I will misremember a detail in a case, or the precise nature of a statistic. If so, please just let me know via email, and I’ll make (and note) the correction. In the meantime, I want to maintain this disclaimer so as to avoid any suggestion that what I’m posting here has gone through thorough fact-checking, or comes with my guarantee or anything but my best effort at accuracy. This isn’t a newspaper.