America's Criminal Health Crisis

Pt. 2 of the MAAS Special Report - The Standards of Insanity

In the valley of the brains

Chaos isn’t a pit, it’s a ladder.

Petyr Baelish, Game of Thrones - Season 3, Episode 6

So too, can this “ladder analogy” be said about insanity.¹ The higher one climbs, the more dangerous it becomes. Edgar Allen Poe said that insanity was a constant, only interrupted by “horrible” fits of sanity.² Some renditions of sanity are more pragmatic, like the oftly quoted analogy given to us by Einstein - to do the same thing over and over again expecting different results.³ Some attribute madness to courage, to which some lack and others do not.⁴ Casual acquaintances state they will act crazy if the barista at Starbucks gets their MochaJapavavalatte wrong.⁵ Persons you overhear state that they had gone insane many times, laughing it off as something trendy to say. Whatever it is, there is a cultural phenomenon in America with being “insane.”

In the criminal justice realm, this is more apparent because of the lengths to keep those who are dangerously insane behind bars, and that those who climb the highest likely present the most danger to society and in some cases, fall the hardest. In Part 1 we talked about some of the dynamics of being insane and the possible root cause of that. But, much like an appellate court, we took the easy way out and punted because it’s not the proper subject matter of this publication.⁶

Photo by Patrick Fore on Unsplash

The insanity defense is still considered an extremely powerful tool in the criminal justice system, and nearly everyone knows about or has heard of being “not guilty by reason of insanity” or NGRI. It is also important to note “insanity” is a legal term and not used by modern psychologists. As creature of legal mechanics, the tests for proving someone is insane is also a legal mechanism, not entirely built upon by science.

ATTORNEYS AND JUDGES CREATING THE NGRI TESTS IN THE 1800s and early 1900s:

The result of a successful insanity defense is usually commitment to a psychiatric institution for likely longer than the jail sentence would have been. There are two tests that dominate the current landscape of American insanity: the Model Penal Code and the M’Naghten Rule. These are the tests and we will rate them based on difficulty, legally speaking, of getting a NGRI:

The M'Naghten Rule: Defendant's mental state leaves them unable to distinguish between right and wrong. They do not understand what they did at the time of the offense as a result of mental disease.

Difficulty:

The Irresistible Impulse Test: Defendant is unable to control their impulses due to a mental disorder, leading to criminal conduct.

Difficulty:

The Model Penal Code Test: Defendant has an incapacity to act within legal constraints or failed to understand the criminality of their acts due to a mental defect.

This is actually a combination of both the M’Naghty rule and irresistible impulse test. So it combines the hardest test with the otherwise easier test to prove.⁷

The Durham Rule: Defendant's mental illness led to the commission of a criminal act, regardless of clinical diagnosis.

Difficulty:

'They brought me up here to execute me'

Quick Numbers

• A slim majority of states (24) use the M’Naghten Rule (MNR) compared to the MPC Test (21).

• Four of the twenty-four that use the MNR use a hybrid of that test with the Irresistible Impulse Test (IIT). Almost all of the states using MNR use a modified version of that test in some way or another.

• In four states, there exists no defense of insanity (KS, UT, MT, ID) but instead a person may use evidence to disprove their mens rea and be considered “guilty but insane.”

• Only one jurisdiction (NH) uses the Durham Rule.

• On average, only .85% of people in criminal cases plead the NGRI defense.

• Success with the NGRI defense is even less, at .26%. (Each decimal is below 1)

The history behind all of these tests stretches back to Roman times, using the precursor of the NGRI to excuse certain insane conduct. As far as U.S. History goes, most NGRI defenses were created in the late 1800s, early 1900s. This coincides with the rise of the death penalty during that time. The MNR test originated in 1843 in England during the case against Daniel M’Naghten. M’Naghten shot and killed the secretary to the Prime Minister, Edward Drummond, believing he was the Prime Minister. When he was arrested, he claimed that he had to assassinate the Prime Minister because that is what the “tories” wanted. At trial, his counselor used the NGRI test and he was acquitted. Public outrage ensued, and they created the stricter test: (1) a person must not know what they were doing when they committed said act, or (2) that they knew what they were doing, but did not know that it was wrong.

The burden to disprove an insanity defense was on the prosecution until 1982 when Mr. John Hinckley Jr. was acquitted of attempted assassination of Reagan on the basis of an insanity defense.⁸ In response to the national outrage, many states reformed or completely abolished the NGRI defense. Here’s a look at what Hinckley is doing now…

Goddamn.

Anyway, like I was saying, public backlash. According to a 1987 study, 66% of respondents agreed that the insanity defense shouldn't be a complete defense, but 50% thought it should be abolished. This backlash caused many states to reform their laws and also put the burden on the defense in the majority (36) of states and the federal government.⁹ The burden is by usually clear and convincing evidence.¹⁰ For some of those states where the burden is on the defendant (AL, GA, ID, AR, KY, LA, MO, NE, NV, NC, SC, SD, TX, WY), the possible penalty is also death. This gives a new meaning to a “life or death” type of treatment.

Okay okay, I’ll stop. I take SSRIs too!

This does, however, mean that some of those people who are being executed are also mentally ill. Like scientifically mentally ill, but apparently not enough for legally mentally ill. Let’s look at a possible case.

Cecil Clayton in 2015

The death penalty is typically reserved for cop killers. The case of Mr. Clayton is no different, as he killed officer Christopher Casetter in 1996 in Missouri. A significant portion of his brain was missing prior to 1996 - via an unfortunate accident at a sawmill in 1972 - which left him prone to violence, impulsivity, and missing the “decision-making” part of his brain. The MO Supreme Court ruled 4-3 that he could not have his execution stayed to undergo another competency evaluation. Executed on March 17th, 2015 his last words were:

"They brought me up here to execute me."

This man literally had a hole in his head. The U.S. Supreme Court then denied the stay of execution 5-4. In USSC procedural talk, you need four votes to hear a case, but need five in order to get a stay of execution. In this instance, four Justices agreed to the stay (Ginsburg, Breyer, Sotomayor, Kagan) but there wasn’t enough for the fifth to consider the appeal.

This “too little too late” seems to be a running theme with those who are mentally insane on death row. It doesn’t matter if you are a Vietnam Veteran¹¹; or if you were allegedly not even there, and talk to people who are in your head¹²; or when you should have not been released previously because of your aggressive psychoactive tendencies¹³; or when you should have already died from attempting suicide twice because of your long-standing history with mental illness that committed both your mother and sister prior.¹⁴ No, when it comes down to it America has a fascination with killing, especially those who are unwanted by society.

We can also see that these people above, and the countless others with mental illness that are not condoned safe, present a real danger to society. All of these people with mental defect or disease sitting on death row killed someone in order for the state to justify the ultimate penalty. Victims who will never be heard from again, snuffed out by an unexplainable and mind-boggling tragedy of U.S. policy making and mental health mismanagement.¹⁵

We can call watching someone die on a gurney “justice” but lets not be mistaken, it is revenge. Revenge in the most classic, cold, calculated, and controlled manner. Revenge in the justified “eye for an eye” hammurabian way.¹⁶ But even then, there is research to support that victims’ families don’t necessarily feel “closure” or “justice” has been done after the person dies. In nearly all major religions, including Christianity, there is a hands off approach to revenge. Some religions ward against it specifically, others are diametrically incompatible with the concept of revenge. It has roots in early Mesopotamia and was used throughout times where no one had a vote, and universal suffrage was a fairly remote concept.

So why do it? Especially when there are possibly innocent and those extremely mentally handicapped persons in the prison system. It seems like too high a price. I’m not here to convince you, I’m just here to say look at what is going on around you.¹⁷ U.S. Federalism consists of two motivations: supremacy and control. The ultimate control mechanism is making a spectacle of a public execution.

UTMTIDKS

Moving on, there are four states we mentioned above who have no NGRI defense, but also have the death penalty: Kansas, Montana, Idaho, and Utah. This is known as the mens rea approach to forgiving the insane’s actions. This approach allows a defendant to be acquitted who lacks the mental state for the crime, without consideration of the defendant’s understanding of the wrongness of their actions.

The hypothetical looks like this:

Micky is tried in Kansas for a triple homicide. At trial Micky’s attorney, Donny, presents evidence that Micky actually believed he was the King of the Carolingian Empire, Charlamagne I.¹⁸ He believed that his lair and castle was in the maternity section of the local Walmart Supercenter. Soon after, he killed three people with a replica sword because he thought they were Saxon infidels. He injures two more employees who try to chase him out of the clothes rack he is hidden in.

In Kansas, Micky would be out of luck. The mens rea standard would say that all of that evidence simply to the weight of the evidence for the jury to consider. Part of a jury’s duty, although not stated explicitly, is to explain something terrible or unlawful that happened. By adjuding guilty or false, a jury necessarily gives credibility to a specific set of facts.

But then how does one explain some of the most random and disturbing acts by the insane constituting murder?

Where is the motive?

Where and what is the closure?

Is this the righteous justice?

Is it financial gain?

Just watching someone die?

If this is a lot to consider, imagine a jury’s position. You also have a time crunch on your hands. These are regular people, who get paid cents to serve on a jury. You can’t blame them for convicting you; your conviction is just a product of a rushed system.¹⁹ Sure, they will consider the evidence. But it’ll just become part of the plethora of “other evidence” they will also consider. You, as a defense attorney, put that feeble, impersonal, and frankly disorienting scientific evidence on, which most juries see as an excuse, against the unexplainable triple homicide that just happened. Part of that you can thank the guy writing and performing love songs online now, supra.

With that backdrop, how has this approach worked?

Kansas

In 1995, the Kansas legislature enacted what is now K.S.A. 21-5209, known as the mens rea approach. K.S.A. 21-5209 states:

“It shall be a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the culpable mental state required as an element of the crime charged.”

So, as far as cause and effect go, a defendant needs to prove that the mental disease or defect prevented them from forming the mens rea to complete the crime. As stated above, 9 times out of 10, this will not result in an acquittal. Not even from a purely jury nullification standard too. If you are so delusional that you believe someone is a Saxon invader and kill them, you still form the mens rea to kill that person. The good news is that Kansas hasn’t used the death penalty in an awful long time. In 2010, the Kansas legislature was only one vote short to change the death penalty to life without the possibility of parole.

Last execution: 1965

Current inmates on death row: 11 (2022)

Idaho

Idaho used the M’Naghten defense until 1969, when their Supreme Court decided to adopt the MPC version (ALI predecessor). Then after 1982, they abolished the defense and replaced it with I.C. § 18-207:

a "[m]ental condition shall not be a defense to any charge of criminal conduct."

Execution Costs in Idaho Take Center Stage with New Firing Squad Law

Critics argue that the increased cost will hurt taxpayers in the long-term, but Ricks claims the bill does not increase IDOC spending. He argues that since Idaho taxpayers already pay approximately $36,500 a year to house each death row prisoner, many for more than two decades, the one-time renovation cost, already in the IDOC budget, represents a fraction of what taxpayers spend on lengthy appeals processes and prison sentences. 

Death Penalty Information Center, quoting Senator Doug Ricks (R-Rexburg)

So, the logic is, instead of just drop the death penalty - which would cost taxpayers no extra money and possibly alleviate the budget - you’re just charging the taxpayers more and they should just, like, get over it.

Since they changed the law they have executed three people. Did any of them use or try to use the insanity defense?

Keith Wells executed in 1994 for killing two people

• Did not use insanity defense.

• In fact, he forwent his appeal because it would cause his family and the victims’ family more pain.

Paul Ezra Rhoades²⁰ executed in 2011 for killing three people

• Used insanity defense that was denied.

• He was sentenced to death for two murders, and life imprisonment for another.

• This turns into a bit of a pissing match between defense counsel, who is right, and the judge, who is also right.²¹

• There was possibly “some” evidence that he was insane, as told by the officer and also allegedly reported by the psychiatrist.²²

Richard Albert Leavitt executed in 2012 for killing one person and removing her sexual organs

• Did not use the insanity defense

• Was medically examined, and was diagnosed with antisocial personality disorder and intermittent explosive disorder.

• During trial, his wife testified that she would observe him playing with deer sexual organs, much like the murder that took place.

So out of the three, only one used the insanity defense to no avail. But, two out of three of the executed had some sort of psychological disorder. The more pressing issue is whether Idaho can actually get the drugs to kill people, and they ran out in 2019. Luckily, in 2022 they put into law a bill that gives even more secrecy on how they get their drugs. Gerald Pizzuto, who is currently on death row, recently had his execution stayed indefinitely. His reasoning? You can’t impose the death penalty without the drugs to do it! The court agreed²³, as it violated the Eighth Amendment. Good news though, in 2023 Idaho brought back the age old “firing squad.”

Last execution: 2012

Current inmates on death row: 9 (2024)

Utah

In 1983, the Utah state legislature abolished the insanity statute in favor of a mens rea statute. Utah also allows for verdicts of “guilty with a mental illness at the time of the offense” and “guilty of a lesser offense with a mental illness at the time of the offense,” which provide for the evaluation of a current mental illness and commitment to a mental health facility as part of the sentence. Between 2012-2018, the insanity defense was used every year. How has that translated to those on death row?

On July 24, 1984, Ronald Lafferty and his brother Dan²⁴ murdered his sister-in-law Brenda and her baby daughter, delusionally believing that they had been responsible for his excommunication from the Church of Latter Day Saints. Lafferty, who was severely mentally ill, and his brothers had formed a breakaway polygamous sect they called the School of the Prophets. He said he had received a “divinely inspired” vision to commit the killings. Lafferty was sentenced to death in 1985, but a federal appeals court overturned his conviction because of his concerns over his mental competency. His retrial was delayed after a court found him incompetent to stand trial in 1992. Two years later, he was deemed competent to be retried. He was retried and convicted in April 1996 and again sentenced to death.

Lafferty died on Utah’s death row in November 2019 at the age of 78. At the time, he was Utah’s longest-serving death-row prisoner. Lafferty’s case was the subject of Jon Krakauer’s 2003 book, Under the Banner of Heaven.

Death Penalty Information Center, Utah

This is right after the new insanity defense comes out. He is tried, convicted, appealed and then gets a new trial in 1991. Competency is retested in 1994, and he is retried and convicted again in 1996, thereafter re-sentenced to death. He re-appealed in 2001, which was denied. He then sought to challenge on federal appeal, which lasted until 2019, when he died of natural causes.

What would have happened if the MPC test was used instead?

A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.

As used in this Article, the terms "mental disease or defect" do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.

You can see how this changes things. It requires the appreciation of the wrongness, not whether the insanity did not cause him to have the requisite mental state. In this instance, guided by divine thought to kill via schizophrenia and other disorders, Ron was unable to appreciate the criminality of his conduct. When weighing whether not to kill or to kill because God told you to, there is no right and wrong. Ostensibly, God decides what is right and wrong, and in this instance he has specifically told Ronald to kill another. In Ronald’s mind, he was justified in killing another, which was not “wrong” because God asked him to do this.

Utah is alive and well with the death penalty, they just killed someone this year.

A man facing execution next month for the murder his girlfriend’s mother asked state officials Monday to spare his life, saying he is not the same person he was when he killed the woman after a day of drinking and using drugs.

July 22, 2024, AP NEWS

To be clear, Taberon Honie’s murder of Claudia Benn was incredibly violent and a spectacle of savagery. He brutally murdered and raped her, after forcibly breaking into her house. This was his baby momma’s momma, and guess who had just gotten broken up with? Right. There is no excuse.

There isn’t much information out there about him, but allegedly he grew up on the Hopi reservation and was taken from his home and put in government boarding schools as a child. He also allegedly first used alcohol while still in his mother’s womb, then regularly used past the age of twelve. There are no real legal excuses here, and an insanity defense likely would not have saved him, but it is clear this trauma and substance abuse became his own mental disease.

Last execution: 2024

Current inmates on death row: 7 (2024)

Montana

Whereas Idaho and Utah seem to be gunning for killing more people, no matter the cost, Kansas and Montana have taken a different approach. In 1979, Montana became the first state to abolish the affirmative insanity defense, replacing it with the mens rea approach. The representative who sponsored the legislation, Michael Keedy, was reportedly influenced by the work of anti-psychiatry advocate Thomas Szasz and testified that psychiatrists made “arbitrary and Godlike determinations” and “should be removed from the criminal justice process.”

Since then, Montana has carried out a few executions (3) but has mostly seemed uninterested in killing people. In 2023, there was a new bill introduced which would help restart executions, but was voted down. All executions have been suspended indefinitely since 2012 because of drug problems and the cost to the state. Of the three killed, two waived their appeals and Duncan McKenzie was on death row for twenty something years. None of them used the insanity defense, at least substantially.

Last execution: 2006

Current inmates on death row: 2 (2024)

Killing…Constitutionally

The constitutionality of the mens rea and the like have been challenged multiple times to the USSC, in Kahler v. Kansas, State v. Bethel, and Clark v. Arizona to name a few. Consistently, the court has denied certiorari to most cases, and has repeatedly stated that these other approaches to an insanity defense do not violate due process. But some state courts have come to their own conclusions. Nevada’s²⁵ highest court struck down the legislature’s abolition of the insanity defense as it violated due process. Other states, Mississippi, Washington and Louisiana, struck down laws that completely eliminated the insanity defense in the early 20th Century.

If you are legally insane in another jurisdiction, say Missouri, you may not be in Kansas. Kansas hasn’t killed anyone since 1965, so not the best comparison. But what about the Idaho/Washington border? Montana/Washington? Utah/Colorado? Kansas/Colorado? The difference between death and possible treatment is only a few miles apart.

We understand the legislative history behind it. Legislators are trying to strike a divide between those with antisocial personality disorders (e.g. Ted Bundy) and those who are missing part of their brain. As society, we do not want Ted Bundy to get treatment, because there isn’t enough treatment to cure Bundy. But killing those who are mentally disabled also seems to be a (accidental?) product of this legislation. If legislators did care about this, they would be trying to right the wrongs of the insanity defense. This would be a welcome update, since most of those laws have been unchanged from the 1980s when they were enacted. But that shit just ain’t gonna happen.

Final Note

If nothing else hit a cord with you, dear reader, then maybe this will:

It costs more to kill people than to simply imprison them for the rest of their life.

• In 2003, the Kansas legislature found that it spent 70% more to execute people than the comparable non-death penalty case.

• in 2004, Tennessee found that it spent 48% more to execute death penalty prisoners.

• In 2008 Maryland found it spent nearly three times more on a death penalty case, each case averaging about $3 million.

• California found in 2008 as well that by keeping the death penalty, nearly $137 million for a system with the death penalty. Without it? Only about $11 million.

• in 2023 the Ohio AG said the death penalty was “enormously expensive” and “broken.”

• On August 14th 2024, the city of Edmond, Oklahoma agreed to pay $7.15 Million to Glynn Simmons, exonerated after 48 Years in prison and two on death row.²⁶

• The city of Philadelphia paid $9 million to Walter Ogrod who spent 28 years on death row.

In comparison….

• The average annual health care cost for a person with major depression is $10,836.

• From 2022-2023, the state of Colorado spent about $14 billion on healthcare services but only spent about $842 million on actual behavioral health services.

• in 2024, Idaho appropriated $963 million to health and human services.

• In Utah in 2024, 35% ($10 billion) of the $29.4 billion budget was apportioned to Social Services.

Your tax dollars, if you live in these states, go to an enormously large fund for killing people. For example, Jasper County, Texas raised property taxes by nearly 7% to pay for a single death penalty case. And even if you don’t care for these crazy people being murdered by the state, your tax dollars still go to their right to appeal. If you have a mental disease or defect, your attorneys may just be doing their job by raising this on appeal after appeal. It’s unethical otherwise.

Given these stats, from a financial position, the death penalty is overpriced. Given that legislatures spend as much or less on actual mental health services to their populations, it seems like this would be a welcome reprieve for any pragmatic legislator. In some instances there would be a gain from removing the death penalty that could be added to other, increased funding.

---

The process is broken. There is the means to fix it. Keep your mens rea standards but make it so those who are identified pretrial as having a mental disease or defect to get treatment or get actual substantive testing. You can even make this automatic for death penalty inmates only in those states. There’s a way to do this without giving up your weird preconceived notions about legal insanity and eliminate killing those not in their right minds.

Closure, within this special report piece, is changing the law. It would have been better if none of those victims ever suffered the fate of this unexplainable and horrific event. As we have just walked through, there are some ways that reversing this trend can happen. Providing better social services for those with known mental disease. Eliminating the death penalty and using that cash to invest in the future - so this doesn’t keep happening. Keeping those who are violent and mentally incompetent in the right places. People need reasons why this shit happens, because just watching people die on a gurney isn’t doing it anymore.²⁷

- Thanks for reading!

HJRC

1. I hate to use a fictional story to encapsulate something in the real world, but that belies the truth that fiction is modeled, at least tacitly, about reality.

2. Edgar Allan Poe (1980). “The Unknown Poe: An Anthology of Fugitive Writings”, p.8, City Lights Books

3. Albert Einstein (2010). “The Ultimate Quotable Einstein”, p.474, Princeton University Press

4. Not everyone is capable of madness; and of those lucky enough to be capable, not many have the courage for it - August Strindberg

5. It’s missing two pumps of classic syrup and she can tell.

6. Listen, I’m not going to even attempt to unravel this shit. I love to pontificate but going into the root cause is beyond my pay grade.

7. All I need is an expert witness, maybe a few, to testify that my client has some sort of nervous tick he can’t control - he only murders prostitutes - and this is a golden ticket to acquittal. But this is never a stand alone test, at least not in modern U.S. jurisdictions.

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