POLITICS JULY 12, 1982
If the law truly means what it says, then John W. Hinckley Jr. had to be found not guilty of the attempted murder of the President of the United States. Not because he didn’t do it—and not even because the defense proved that mental illness caused his acts—but because the jury could not help entertaining a reasonable doubt about Hinckley’s sanity at the time of the shooting. As a matter of logic, that reasonable doubt left no lawful choice but to acquit the man who shot President Reagan and three other people in full view of hundreds of millions of television watchers.
Yet as the jury began to deliberate, few observers expected that kind of strict legal logic to prevail. Hinckley would certainly be convinced, the experts thought, if only because the idea that someone can shoot the President and not be punished for it is so abhorrent to both common sense and civil order. And if the initial reactions of ordinary people are any indication, the verdict has deeply outraged the sense of justice of most Americans.
Moreover, the verdict in this case seems to damage the stated purpose of the insanity defense, which is to affirm that most individuals are responsible for their actions, and, at the same time, to identify the very few who are utterly—and, in a moral sense, blamelessly—unable to control their conduct. In short, what the Hinckley case shows is that the insanity defense needs to be radically changed—in its definition of insanity, its allocation of the burden of proof, or both—or even abolished.
Hinckley’s lawyers portrayed him as living out a delusion based on the movie Taxi Driver, obsessed with frustrated love for Jodie Foster, and suffering from a severe mental illness that caused his acts. The government, conceding that Hinckley was somewhat disturbed, argued that he nonetheless plotted and carried out the shooting as an easy means to achieve instant fame, and that he could have chosen not to attack the President. With expert opinion so deeply divided, why was acquittal a logical necessity? The answer is in the law on burden of proof—that is, who must prove what to the jury.
That law varies from jurisdiction to jurisdiction; in the federal courts where Hinckley was tried, it happens to be unusually favorable to the defense. At the start, Hinckley, like all criminal defendants, was presumed by the law to be sane and therefore responsible for his conduct. But as soon as the defense introduced some evidence of insanity, the burden shifted to the prosecution. The defense was not obliged to prove that Hinckley was insane; the prosecution, on the other hand, was obliged to prove that he was sane, and to do so beyond reasonable doubt. So even if the government’s psychiatrists convinced the jury that Hinckley was probably sane, the picture drawn by the defense was enough to create a nagging doubt—and that, it turned out, was all it took.
The choice of experts for the defense team was deliberately unorthodox. For most insanity trials, lawyers hire forensic psychiatrists, professional witnesses who make a career of testifying in court and who engage in little outside medical practice. According to Dr. Willard Gaylin, a noted authority on psychiatry and law, “If you drew up a list of the fifty, one hundred, or ten thousand most prominent psychiatrists in the country, the doctors that lawyers use would not be on the list.” These same psychiatrists turn up again and again in criminal cases. Like pro football players, they specialize in offense or defense, and their beliefs on critical issues seem to be determined more by the side they represent than by a fair examination of the issues.
The defense—in a stroke of brilliance or perhaps just an act of desperation—picked, as two of its three expert psychiatrists, eminent researchers in schizophrenia, Dr. Michael Bear and Dr. William Carpenter, neither of whom had prior courtroom experience. During the trial, the “untried” experts seemed awkward on the witness stand, especially in comparison with the polished performances of the experts on the opposing side; and the government argued that experts without criminal trial experience could not accurately evaluate criminal patients. The jury evidently disagreed.
The doubts raised by the defense psychiatrists were reinforced by other evidence. While awaiting trial, Hinckley twice tried to commit suicide. In May 1981 he swallowed a large number of Tylenol tablets. Six months later he jammed his cell door with a cracker box and hanged himself from the window bars. By the time guards climbed to his window from the outside and cut down his noose, he was turning blue. The judge was clearly worried that there might be a violent outburst or even another suicide attempt at the trial. Two federal marshals were stationed directly behind Hinckley at all times, with orders to keep lead pencils and paper clips out of his reach.
Sophisticated medical technology introduced physical evidence suggesting that Hinckley was abnormal. A CAT scan (a computer-enhanced, three-dimensional X-ray) showed organic abnormalities in Hinckley’s brain, and a defense expert testified that folds, or solci, showed signs of atrophy. The prosecution challenged this testimony with its own expert who saw no evidence of atrophy in the brain pictures. If the atrophy does exist, it by no means proves that Hinckley was mentally ill, even though atrophy occurs ten times more often in schizophrenics than in apparently normal adults (30 percent versus 3 percent). But the effect of this evidence was to plant additional seeds of doubt.
The jury’s doubts may also have been strengthened by the grave errors committed by psychiatrists who treated Hinckley during the year before the shooting. Dr. Michael Hopper, who saw Hinckley about a dozen times, prescribed biofeedback and meditation exercises. He convinced Hinckley’s father to banish Hinckley from home—despite the anguished protests of Hinckley’s brother and sister, who felt that he could not cope in the outside world and wanted him committed to a mental hospital. Both Hopper and another psychiatrist, whom Hinckley saw while a student in Texas, treated him with valium for his complaints. Yet many doctors say that valium is “contraindicated” for schizophrenics, because it may cause violent behavior. According to the defense, to prescribe the drug for Hinckley was a medical disaster, or in the words of one of his lawyers, it was “like throwing gasoline on a lighted fire.” Only hours before shooting Reagan, Hinckley says, he took twenty milligrams of valium, two to four times the usual dosage.
Survey the evidence of the defense on the issue of Hinckley’s sanity: the suicide attempts, the CAT scan, the blunders of Dr. Hopper and other psychiatrists Hinckley was seeing, the experts’ evaluations, and the emotional descriptions of Hinckley’s troubles by his immediate family. Then consider the prosecution’s case: the expert psychiatrists and the testimony of police and a physician who said Hinckley was calm and rational immediately after his arrest. And finally, recall the prosecution’s very heavy burden of proof: to show decisively that Hinckley was sane.
Yet the announcement of the verdict had an extraordinary impact. Seasoned courtroom observers present during the entire trial were shocked. Why were they so certain that the jury would reject the insanity defense and convict Hinckley?
The first and greatest obstacle to acquittal was the undisputed fact that Hinckley had fired a bullet into the body of the President of the United States. During the past two decades, there have been eight attempts to murder Presidents, Presidential candidates, and other national leaders. Four victims died (John and Robert Kennedy, Martin Luther King, and Allard Lowenstein), one was crippled for life (George Wallace), one was seriously wounded (Ronald Reagan), and one emerged unscathed from two separate attempts (Jerry Ford). How, it was asked, could the jury possibly find Hinckley not guilty, knowing the message that it would send to potential assassins?
The second obstacle was the well-established reluctance of juries to acquit by reason of insanity except in the most extreme and obvious cases of mental disturbance. In federal court, where Hinckley was tried, the test for insanity is met if the defendant engages in criminal conduct either because he “lack substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.” But experienced trial lawyers know that this or any other legal formula has little impact on jurors, who tend to follow their own intuitive judgments regardless of what they are told by the judge. One criminal attorney calls it the “fireplug rule.” He explains, “Jurors think you’re sane unless you’re a fireplug or swinging from the trees”—that is, unless you’re stark staring mad or stark raving mad—“and Hinckley is neither.” Empirical studies bear out this impression. Juries in mock trials tend to reach the same results whether the definition of insanity they are results whether the definition of insanity they are given is broad or narrow, and they acquit only the most extremely and obviously mentally ill.
Prosecutor Roger Adelman certainly tried to appeal to the fireplug rule. Cross-examining defense expert William Carpenter, who claimed that Hinckley had suffered from schizophrenia for a number of years, Adelman demanded: “Didn’t the defendant attend a Texas college and receive an A-minus on a book report? Didn’t he manage to make plane reservations? Didn’t he find his way in and out of New York City? And wasn’t this during the same time you say he was suffering from schizophrenia?”
The third obstacle was the reluctance of juries to acquit if it leads to early release of the defendant. An informal poll I conducted of the spectators queued up to enter the trial illustrates the point. Everyone in line agreed on two points: first, that Hinckley was absolutely loony, and second, that he should be convicted so that he’d be off the streets. What was the jury told about the consequences of a successful insanity defense? The judge answered the question for them in terms of abstract principles. Hinckley would be automatically committed to a mental hospital for fifty days, and he would then be entitled to a hearing to determine his eligibility for release. After that, he could seek a review in six months. This made it sound as if Hinckley could very well get out in a few years or even months.
In fact, Hinckley’s future prospects are far less promising. Despite the acquittal, it seems certain that he will be confined for decades, if not for the rest of his life. He could be released only if a judge, after hearing from psychiatrists, find that he is no longer dangerous. But what psychiatrist, even for hire, would risk such a prediction? And, if such a psychiatrist could be found, what judge would accept the prediction and order Hinckley’s release? The jury, however, almost certainly could not learn these practical aspects from the theoretical cast of the instructions. The law does not require further explanation, and Judge Barrington Parker did not offer it on his own.
When these three obstacles are considered, it seems inconceivable that all twelve jurors could have found Hinckley not guilty. If ever there were a case in which the jury could be expected to suppress its “reasonable doubt,” this was it. The overwhelming sentiment against the verdict indicates that the insanity defense is in need of substantial modification, or, better, outright abolition.
One possibility is to lighten the government’s burden of proof. Had Hinckley not been tried in a federal court—in a local District of Columbia court, for example—he could have faced an entirely different rule. The District of Columbia requires the defendant to carry the burden and to show “by a preponderance of the evidence” that he was insane. The case ended up in a federal rather than a local court, by the way, because of the recently enacted federal anti-assassination law. One of the ironies of this case is that a law designed expressly to protect Presidents made it easier to acquit someone who actually shot one.
But this does not mean that the federal burden of proof was necessarily the cause of the jury’s failure to convict Hinckley. It does make it possible to say that acquittal was logically required. But in light of the jury’s unanimous insanity verdict, it is doubtful that all twelve members would have convicted Hinckley even under a tougher burden of proof. At most, the result might have been a hung jury rather than a verdict of not guilty by a reason of insanity.
A second possibility is to return to the narrow definition of insanity that existed in the nineteenth century, which called for acquittal only if the defendant could not tell right from wrong and this was the cause of the criminal act. In recent weeks there have been serious proposals to adopt the narrowest definition. But these efforts to reshape the boundaries of the legal definition of insanity are problematic, since jurors will continue to apply their own judgments of what is mentally aberrant.
Does, then, the insanity defense achieve its stated purposes? One argument is that it serves an important symbolic function: by excluding from blame those who commit crimes due to mental disease, we affirm that most will be held morally responsible. But instead of affirming moral responsibility, in the Hinckley case acquittal negates it. Particularly because the victim was the President, much of the public believes that Hinckley has duped the system and evaded responsibility for his acts.
And suppose that despite the very long odds against Hinckley’s release, his attorneys contest his civil commitment at some point in the near future. Then the public will see positions flip-flop. The defense argued that Hinckley was sick; now it must contend that he is well. The government argued that he was well; now it must say that he is sick. As a matter of strict logic, neither side is being inconsistent, since the insanity defense is concerned with the moment when the crime was committed, and the focus of civil commitment is on future conduct. But this distinction is lost on the public, and the unseemly switch in positions will not do much for the principle of moral responsibility.
A second argument for the insanity defense is that it’s wrong to punish someone who does not have the capacity for free choice. A six-year-old child, for example, who finds a loaded gun and pulls the trigger is not held criminally responsible for murder. By analogy, it is said, crimes caused by mental illness should not be punished. But the analogy is flawed. Although no one can pinpoint the precise moment when a child is sufficiently mature to be held responsible, the law uses age to draw a rough and ready, but distinct, line. But how do you tell whether an adult has free will?
Psychiatrists have tried to apply the concept of mental illness in determining who does and does not have free will. This approach mistakenly suggests that the process of detecting psychological disturbances closely resembles diagnosis of physical disease. Tuberculosis, for example, can be diagnosed according to reasonably objective criteria—the reaction to a skin test or the pattern on a chest X-ray—and has an established physical cause, the tuberculin bacillus. But the diagnostic criteria for schizophrenia are highly subjective. One person’s delusions may be another’s religion. As Lily Tomlin says, “If you speak to God, it’s prayer; if God speaks to you, it’s schizophrenia.” The inherent vagueness in the concept of mental illness was illustrated in the furious debate between psychiatrists for the defense and the prosecution in the Hinckley case. And even if psychiatric detection of mental illness were reliable, there is a further issue: has the mental issue seriously impaired the defendant’s free will? This is a question for a moral philosopher, not a medical psychiatrist.
For these reasons the insanity defense as it now exists should be abolished. It would, of course, be inhumane to find someone like Hinckley guilty and send him to prison without doing more. However heinous his acts and however much he deserves to be convicted, Hinckley is still terribly sick and needs psychiatric help for the period of his confinement. In this context, the analogy to physical illness is much more persuasive. Would we deny a convict treatment for TB, simply because he has been found guilty of a crime? Ideally, then, insanity should be relevant, not for the jury on the issue of guilt or innocence, but for the judge on sentencing. It should be reflected in the conditions under which the defendant is confined after conviction, and not in the jury’s verdict on criminal responsibility.
The modern insanity standard evolved from an earlier political assassination case. In the 1840s, Daniel M’Naghten killed the private secretary of Sir Robert Peel, the British Prime Minister, in a bungled attempt on Peel’s life. Although M’Naghten’s acquittal by reason of insanity outraged the public at the time and seriously affronted Queen Victoria, the House of Lords upheld the verdict on appeal. If Hinckley’s trial causes the insanity defense to be abolished, we will have come full circle. Political assassinations will have established and then abolished the insanity defense.
This article originally ran in the July 12, 1982, issue of the magazine.