Encyclopedia of Psychology and Law

the defense is raised; it also established the burden of

proof in such cases.

Although criminal law is primarily the province of

the individual states, the federal government has inde-

pendent jurisdiction to prosecute criminal activity that

concerns the federal government. In 1984, all the states

and the federal criminal law had some version of the

insanity defense, but the federal criminal code did not

contain an insanity defense. Instead, each of the courts

of appeal in the 11 federal judicial circuits had judicially

adopted an insanity defense that applied in that circuit.

Ten of the 11 circuit courts of appeal had adopted

the American Law Institute’s Model Penal Code

(MPC) insanity defense, which permits acquittal by

reason of insanity if

at the time of [the crime] as a result of mental disease

or defect [the defendant] lacks substantial capacity

either to appreciate the criminality (wrongfulness) of

his conduct or to conform his conduct to the require-

ments of law. (MPC, Sec. 4.01(1))

One circuit still used the traditional M’Naghten test,

which permitted acquittal if the defendant, as a result

of mental disorder, did not know the nature and qual-

ity of his or her act or did not know that it was wrong.

In 1982, John W. Hinckley Jr. tried to assassinate

President Ronald Reagan. Reagan survived, and

Hinckley was charged with the federal crime of

attempted murder of the President. Hinckley raised

the defense of legal insanity. The case was tried in the

federal district court in the District of Columbia,

which had adopted the MPC test quoted above, which

placed the burden of proof on the prosecution to prove

beyond a reasonable doubt that the defendant was not

legally insane. A jury found Hinckley not guilty by

reason of insanity.

The unpopular verdict unleashed widespread criti-

cism of the insanity defense in Congress and in many

state legislatures, especially of the “loss-of-control”

prong of the MPC test. There were many proposals to

abolish the insanity defense, including from the

Reagan Justice Department. Five state legislatures did

abolish the insanity defense, although in one, the state

Supreme Court held that abolition unconstitutional.

The American Medical Association favored abolition,

but the American Bar Association and the American

Psychiatric Association opposed abolition on the

grounds that it would lead to unfair results and that it

was unnecessary to protect the public.

Many of the criticisms of the insanity defense were

unfounded. For example, the defense has not let large

numbers of defendants “beat the rap.” In fact, few

defendants have succeeded with an insanity defense,

and if those successful were not genuinely criminally

responsible, then it would have been unjust to blame

and punish them. Moreover, the arguments that all

criminal defendants with severe mental disorder at the

time of the crime were criminally responsible were

morally and logically unpersuasive.

The Justice Department abandoned its call for abo-

lition, and Congress decided to retain the insanity

defense. The IDRA created a uniform insanity test

applicable in all federal criminal trials in which the

defense is raised. The test is as follows:

It is an affirmative defense to a prosecution under

any Federal statute that, at the time of the commis-

sion of the acts constituting the offense, the defen-

dant, as a result of a severe mental disease or defect,

was unable to appreciate the nature and quality or the

wrongfulness of his acts. Mental disease or defect

does not otherwise constitute a defense.

The IDRA also placed the burden of proof on the

defendant to prove by clear and convincing evidence

that he or she was legally insane.

The legal insanity test created is similar to the tra-

ditional M’Naghten test and thus is narrower than the

MPC test, which had been “blamed” for Hinckley’s

acquittal. Criticisms of loss-of-control tests convinced

lawmakers that they were unwise, and such a test was

not included. Moreover, the federal test uses the

phrase “unable to appreciate,” which suggests that this

is a bright-line, all-or-none, question, whereas the

apparently more forgiving MPC test points to “lack of

substantial capacity.” Whether this wording difference

makes a difference in practice is not clear.

Like M’Naghten, the federal test focuses on the

defendant’s understanding of the nature and quality of

the act or its wrongfulness. The test is apparently

broader than M’Naghten, however, because it uses the

defendant’s lack of “appreciation” rather than lack of

“knowledge” as the operative criterion, and many

think that appreciation includes an affective as well as

a cognitive component. Whether this criterion is

broader in practice is an open question. The test is also

apparently narrower than M’Naghten because it

explicitly requires that only a severe mental disease or

defect will support a successful insanity defense.

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