A Little Bit More on Insanity Pleas and Respectability

I had promised to move into another area with this post, but I’ve been foiled. The Atlantic ran a story today by Garrett Epps about four forthcoming criminal-justice related cases coming before the Supreme Court. The second has to do with insanity defenses. I’ll quote that section in full (which, if you were particularly interested in the ins-and-outs of insanity statues that I skimmed in my last entry, should at least be edifying), and then offer some preliminary thoughts about the push to curtail mental illness as a criminal defense.

From the story:

Kahler v. Kansas also concerns a Kansas statute—one that in essence abolished the age-old “insanity defense” to a criminal charge. For more than half a millennium, English and American courts have held that “insanity” (now a legal, not medical, term) negated a defendant’s criminal responsibility; by the 19th century, that term had been defined as a mental disease that rendered the defendant either unable to understand “the nature and quality” of what he was doing (thinking the victims were actually haystacks rather than humans, for example) or unable to discern that his actions were wrong. (Some courts used to explain this prong by saying that if defendants would still have committed the crime with a police officer standing nearby, they were legally insane—if not, not.)

That defense fell into some popular disrepute after John W. Hinckley, who attempted to assassinate President Ronald Reagan in 1981, was acquitted for reasons of insanity. Since then, legislatures have experimented with ways of cutting back on the traditional rule. Kansas went further than most. In 1996, its legislature passed a law eliminating the defense entirely—unless the defendant was able to show that he or she was so mentally impaired as to be unable to form the “mental state” necessary to violate the law. A defendant unable to form the “intention” to kill could not be convicted, but one who could “intend” to shoot or kill could be, regardless of how distorted the subjective reasons for doing so.

James K. Kahler, the petitioner in this case, went to his ex-wife’s grandmother’s house on Thanksgiving 2009 and killed the grandmother, his ex-wife, and the couple’s two daughters. At trial, his lawyers offered evidence that he was suffering from major depressive and obsessive-compulsive disorders, among others. A defense expert testified that Kahler “felt compelled” to kill and was, for that period, “completely out of control.”

That defense might or might not have satisfied a jury under the old statute, but in Kahler’s case, the jury was permitted to decide only whether Kahler had the intent to kill; they concluded he did and sentenced him to death. The state supreme court rejected his constitutional challenge to the insanity law. Now his lawyers ask the Court to hold that blocking a traditional insanity defense violates the Eighth Amendment’s ban on “cruel and unusual” punishment.

Besides Kansas, three other states—Idaho, Montana, and Utah—have abolished the insanity defense completely; a fourth, Alaska, has truncated the defense so as to allow conviction even if a defendant didn’t understand right from wrong at the time of the crime. In seven others—California, Colorado, Louisiana, Minnesota, Mississippi, Nevada, and Washington—courts have suggested one way or another that the Constitution requires courts to allow such a defense. The “no insanity” states are therefore outliers, and the cert. grant suggests there’s some desire among the justices to bring them to heel. But only four were needed for the grant; a decision for Kahler will require five.

I am less interested in the particulars of this case—I don’t know any more about it than Epps does—and more interested in thinking about the push to limit insanity defenses in general. Regardless of the outcome here, there’s a clear trend of states seeking to limit, define-down, or simply abolish NGRIs. If we imagine that trends in the law reflect (in some sense) trends in social norms and consciousness, then the question becomes: Why is the United States becoming more skeptical than it was a generation ago about the moral difficulty posed by insane defendants, and therefore, more eager to punish them in the same (already draconian, inhumane) manner that it punishes other criminals?

This is particularly strange when one considers every other cultural trend around mental illness. There has never been a time when discussion of mental health has been more open or widespread. There is no longer a real stigma—in most places—around “seeking help.” Rates of psychiatric medication are at an all time high; if anything, there is a concern that too many people (and particularly too many young people) are currently taking stimulants and antidepressants and anti-anxiety medication. In striver corners, there is almost a push to medicalize one’s personality, to understand stress and frustration and other entirely sane responses to the crushing economic circumstances of the early 21st century in terms of patented Anxiety and Depression(TM). I have spent the past week in New York City, where every subway seems to feature a photo of Olympic athlete Michael Phelps telling me to have therapy. So why, in the same moment, have we trended toward the idea that a schizophrenic murderer has the same stain of malice on their soul as a sane killer, and is, at any rate, probably faking it?

The classic destigmatizer reading is straightforward. First, they might point out, cultural discourse on mental illness is not the same as state-legislative attitudes, particularly when you’re looking at a handful of mainly Republican-dominated states. Second, this is an old story: serious mental illness is poorly understood, and therefore feared, and therefore unlikely to be met with mercy. If anything it is likely to be met with overreaction and over-punishment: Get this strange thing out of our sight! But this does not account, really, for the trend toward more restrictive justice (was mental illness better understood, and less feared, in the 1960s and 70s?). Nor does it really account for the growing divergence between criminal justice and general cultural awareness. State legislatures and their laws might lag behind culture—as they did with marijuana decriminalization, LGBT rights, police reform, etc.—but we aren’t seeing a lag. We are seeing entirely opposite movements.

Part of the trouble is that general mental health awareness/destigmatization/understanding and the particular issues pertaining to mental illness and criminal justice are not often taken up in the same conversation, particularly by destigmatizers. While “how to deal with criminal justice issues” would likely be among the topics an destigmatizing activist or advocate would report concern with if pressed, even organizations like the National Alliance for Mental Illness do not put their focus there. They’ll deploy slogans, like “Treatment not Jail”, but even these efforts tend to focus on safe, pitiable disorderly-conduct-but-nothing-too-serious cases, and only come out at all after “Well, you know, most schizophrenics aren’t dangerous” tropes are trotted out. (At bottom, I always wonder what those tropes are meant to demonstrate. Most cases of flu don’t cause death either, but nobody takes this to mean that “death from flu” isn’t a public health concern worthy of resources). That is: if there is a cleavage forming between broad cultural acceptance of mental illness and how we treat mentally ill criminals, I suspect that it is in part because even advocates for the mentally ill have an investment in separating the two. I’ve called this respectability politics before, and it is: if you’re trying to get the public to stop fearing patients with harmless but unsettling disorders, it’s best to act as if they’re not just the majority case, but really the only case. The ill people who wind up in prison for violent crimes? They have some other problem. They’re just wicked. Don’t talk to us about them. If the vast majority of seriously ill people do not ever commit a crime, then who needs an insanity defense? Surely, the part of those defendants that made them commit their crimes is not the same part that made them ill.

I haven’t worked out a fully fleshed account of this yet, but I suspect there’s a relationship between respectability and the (otherwise positive and long overdue) destigmatizing of mental illness among striver and professional classes. Once public-facing people with university degrees begin to openly identify as members of a maligned class, there is almost always a push to sanitize and separate the visible and respectable from the stickier and more difficult problems of their less visible peers. Mental illness comes in a great variety of forms, and it shouldn’t surprise that the people with moderate anxiety disorders have an easier time reaching positions of public prominence (from which they can “speak for” the mentally ill community) than people with debilitating schizophrenia or bipolar disorder do, and we are seeing, I think, something akin to the Talented Tenth or the Human Rights Campaign forming among the top tier of variously insane Americans. I have no doubt that even those patients face genuine difficulty as a result of their illnesses, but it would be naive to imagine that they don’t also view their illness as a kind of UVP, and the kind of UVP which, particularly in this era when social cleanliness has begun to replace social capital, must trend as near as possible to poorly-understood and semi-mystical, and as far as possible from men like James K. Kahler. That impulse makes sense. Why should the destructive behavior of others become your problem, just because you share a diagnosis? Why should you dedicate energy to helping them, to showing them mercy, to resisting this effort to eliminate insanity defenses with the same energy given over to chiding people for using the word “crazy”, when all these criminals are doing is contributing (by their existence) to the unfair stigma you face?

I suppose we can ask the same questions about why we ought to be giving people food, or medicine, or shelter at all, particularly when you worked so hard and never bankrupted yourself and go to work every day, while the poor sit around doing nothing. And you can answer them, if you like, all the way into conservatism, and reaction, and the fantasy of a moral meritocracy.