In April of 1996, Frederick Finger was charged with murdering his mother. Finger was said to be operating under a delusional belief that his mother was plotting to kill him, so that his only chance at survival was to kill her before she killed him. In accordance with the 1995 Nevada legislation, which abolished the affirmative defense of insanity, the district court denied his request to enter a plea of "not guilty by reason of insanity." As an allegedly insane defendant in the State of Nevada, Finger's only alternative was to enter a plea of guilty but mentally ill. Finger refused to enter the guilty plea, so the district court convicted Finger of second-degree murder and sentenced him to life in prison with minimum parole eligibility after ten years.
On appeal, Finger argued that Nevada's abolishment of insanity as an affirmative defense violated the Eighth and Fourteenth Amendments to the U.S. Constitution and the Nevada Constitution. Nev. Const. art. 1, §§ 6 and 8(5). The Supreme Court of Nevada found that the amendment, Nev. Rev. Stat. § 193.220, allows for a criminal conviction against an individual who lacks the mental capacity to form the necessary element of intent to commit the crime and thereby violated fundamental due process rights of a criminal defendant. In light of this conclusion, the court found it unnecessary to address Appellant's Eighth Amendment issue of cruel and unusual punishment.
The Evolution of the concept of "Legal Insanity"
The court offered a useful history of the insanity defense. The concept of legal insanity can be traced back to the age-old concept of Mens Rea. The term "mens rea" refers to the mental state of a person at the time of the commission of a crime. Both the ABA Criminal Justice Mental Health Standards and the American Law Institute [ALI] Model Penal Code [MPC] acknowledge the fundamental notion that the commission of a crime involves a certain mental component. The basic tenet holds that an individual who lacks the mental capacity to form the intent to commit a crime, in particular a crime in which intent is an element of the offense, cannot be held legally responsible for the commission of that crime. Such individuals are said to be legally insane.
While the general concept has been traced back to as early as the sixth century B.C., our legal history of the insanity defense starts with the 1843 case of Daniel M'Naghten, who attempted to assassinate the prime minister of Britain and was later acquitted on the ground that he was insane at the time of the act. The M'Naghten ruling was met with public outrage. At the insistence of Queen Victoria and the House of Lords, the judges of the common-law courts reviewed the jury instructions and found them to be improper and agreed that M'Naghten should not have been acquitted. The judges then created the definition of legal insanity which became known as M'Naghten's Rule.
Under M'Naghten, a mentally incapacitated defendant who admitted to the commission of a crime would be found not guilty by reason of insanity. Although M'Naghten provided an affirmative defense to the crime, it also created a very strict standard for determining insanity. To meet this standard of insanity, a person must be acting under a delusion so powerful that he is "incapable of appreciating his surroundings." The defense must show that the delusion either robbed the defendant of the ability to understand his actions, or it deprived the defendant of the ability to appreciate the wrongfulness, or illegality, of his actions.
Not until the early 1900's was the M'Naghten definition of legal insanity seriously challenged. Legal scholars and mental health experts advocated for a more expansive definition of legal insanity. Many criticized the fact that under the M'Naghten Rule, individuals who are able to form the criminal intent but cannot control their actions due to an irresistible impulse, will be convicted and punished. These professionals emphasized the "volitional" component of legal insanity, or the ability to conform one's actions to the requirements of the law. As a result, many courts added to M'Naghten an additional, more generous standard for legal insanity, that came to be known as the Irresistible Impulse Test.
Debates concerning the proper definition of legal insanity continued into the 1950's. The Durham standard – sometimes called the "product test" – followed, but was heavily criticized for its expansive definition of legal insanity. Durham v. United States, 94 U.S. App. D.C. 228, 214 F.2d 862 (D.C. Cir. 1954). Under Durham, an individual was legally insane if he "would not have committed the criminal act but for the existence of a mental disease or defect." The Durham model of insanity was much more generous to defendants than the M'Naghten standard. The theory addressed one of the most troubling aspects of the M'Naghten defense: the conviction of a mentally ill defendant, without regard for their special needs and considerations.
Nearly all of the states as well as the federal courts had adopted the M'Naghten test for insanity. Only the District of Columbia in Durham, and perhaps one or two other states, used the "product" test for insanity.
When the American Law Institute published the first draft of its proposed Model Penal Code (MPC), it chose a middle ground between the harshness of M'Naghten and the overly lenient Durham or "product" test. The MPC provided that a defendant 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 of his conduct or to conform his conduct to the requirements of the law." In abandoning the stark commandment that a defendant who "knows" the difference between right and wrong does not have an insanity defense available, the ALI use of "appreciating the criminality of his conduct" introduced some flexibility not allowed under M'Naghten.
Courts as well as legislatures began to favor the middle-ground approach of the MPC. Gradually, the M'Naghten test began to lose favor. One federal circuit after another began to adopt the MPC test until even the District of Columbia, in Brawner v. United States, 471 F.2d 969 (D.C.Cir. 1972), abandoned Durham in favor of a modified MPC test. Many states who passed new criminal codes were heavily influenced by the MPC and adopted its definition of insanity, abandoning M'Naghten. In other states, the shift from M'Naghten to the MPC definition came by court decision. In due time, some version of the MPC test was adopted as the law in all federal circuits and in a substantial number of states. MPC-based insanity tests became the majority rule.
Then, the modern developments in the law of insanity came to an abrupt halt when John Hinckley, charged with the attempted assassination of President Reagan on March 30, 1981, was acquitted on the ground of inanity the following year. The media outcry against the defense of insanity rivaled that which had broken out when M'Naghten had been acquitted almost a century and a half earlier. Legislative reforms were proposed in many states; a dozen or more bills were introduced in Congress to create a "federal test" for insanity that revived the M'Naghten approach. Most states that had abandoned M'Naghten for an MPC-based test, retreated and went back to M'Naghten. A few states went even further and sought to abolish the insanity defense altogether. That brings us to the Nevada experience.
Nevada's Approach to Legal Insanity
Prior to the 1995 amendments, Nevada's statutory scheme recognized the general principle that a person lacking the capacity to appreciate the wrongfulness of their act cannot be convicted of a crime. Nevada courts applied the M'Naghten Rule and procedurally recognized the doctrine as an affirmative defense, wherein the defendant must prove insanity by a preponderance of the evidence.
Not surprisingly, under Nevada's M'Naghten approach, findings of not guilty by reason of insanity were extremely rare. Also, persons acquitted on these grounds were immediately bound over for indefinite commitment to a mental health facility. Since Nevada laws concerning the insanity defense were extremely restrictive, the post- Hinckley developments in the other states had little or no effect on the Nevada approach. However, in 1995, the Nevada Legislature considered several proposed amendments drafted by the Nevada District Attorney's Association.
The Nevada prosecutors' proposed amendments addressed a number of their concerns with regard to the defense, including: (1) Overuse or inappropriate use of the evidentiary allowances, especially when evidence of mental illness is allowed even though such evidence did not relate to, or support, a M'Naghten defense; (2) Inadequate jury and witness instructions; (3) Undue pressure on the courts to consider legal insanity despite its inappropriateness; (4) Inaccurate, inconsistent, and misleading definitions of legal insanity given the court by the defense; and (5) Excessive cost and time-consuming process of admission of such evidence and hiring of experts by prosecution.
The 1995 Nevada amendments mirrored the Mens Rea Model for insanity, which had recently been adopted by Idaho, Montana, and Utah. The plea of "guilty, but mentally ill" replaced the affirmative defense of legal insanity. Under the new law, an accused is barred from arguing that he or she should be acquitted on the basis of legal insanity. The best possible outcome for a defendant pleading "guilty, but mentally ill" is that the jury acquits because they believe that the State has not proven intent beyond a reasonable doubt (that is, intent to do the act, regardless of mental capacity). Under this unlikely scenario, the accused could still be held under civil involuntary commitment statutes.
Constitutional Analysis
The Nevada Supreme Court struck down the 1995 amendments on due process grounds. The Court found that the statutory scheme unconstitutionally permits an individual to be convicted criminally even though he or she is unable to form the necessary criminal intent. It reasoned that because mens rea is fundamental to a finding of criminal culpability, the concept of legal insanity is a fundamental principle protected by constitutional due process and must be treated as a complete defense to a criminal act. Justice Harlan stated, in Davis v. United States, that a defendant is "entitled to an acquittal of the specific crime charged if, upon all the evidence, there is reasonable doubt whether he was capable in law of committing crime," Davis v. United States, 160 U.S. 469, 40 L. Ed. 449, 16 S. Ct. 353 (1895).
The Court reasoned that an injury is only a crime if it is inflicted by intention. According to the Court, a defendant who lacks the mental capacity to know the nature of his or her act and to know that the act is wrong cannot form intent therefore cannot be found guilty of an intent-based crime. They stressed that this notion is as "universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." The Court concluded that every civilized system of law recognizes the defense of insanity as a core principle.
The Court saw evidence of this universal notion as far back as the English common law under King Edward II (1307-1321). Modern authority recognizing this principle was also cited by the court, including the ABA Standing Committee on Association Standards for Criminal Justice, who rejected the Mens Rea Model calling it a "jarring reversal of hundreds of years of moral and legal history." Even post-Hinckley federal legislation required culpability as a prerequisite to criminal prosecution. The Nevada Supreme Court called Nevada's 1995 amendments and the Mens Rea Model in general, the products of an "unfortunate and unwarranted overreaction to the Hinckley verdict." The Court named many cases in support of their reasoning. State v. Strasburg, 60 Wash. 106, 110 P. 1020 (1910), Sinclair v. State, 161 Miss. 142, 132 So. 581 (Miss. 1931).
The Nevada Supreme Court disagreed with those state supreme courts that have ruled that the insanity defense is not a federal fundamental right under the Due Process Clause. State v. Herrera, 895 P.2d 359 (Utah 1995); State v. Searcy, 118 Idaho 632, 798 P.2d 914 (Idaho 1990), State v. Korell, 213 Mont. 316, 690 P.2d 992 (Mont. 1984). The Court found serious flaws in the reasoning behind each of these states' predictions on how the U.S. Supreme Court would rule on the issue. The Nevada Supreme Court found that an overwhelming majority of U.S. Supreme Court case law that addresses policy issues related to the insanity defense, supports the proposition that the insanity defense is a fundamental due process right.
Nevada cited as authority three cases in which each of the state courts relied on two instances of obiter dictum in reaching their decision. They used Powell v. Texas, 392 U.S. 514, 20 L. Ed. 2d 1254, 88 S. Ct. 2145 (1968), a U.S. Supreme Court case about whether it is unconstitutional to make public intoxication a crime, to show that the Court prefers a strict liability-type standard in prosecuting crimes typically considered intent-based and that the states should decide this issue based on their particular policy interests. Although the Nevada court agreed that the Powell opinion represents the "Supreme Court's longstanding policy to generally permit the states to determine the details of how to implement well established doctrines," they also found overwhelming evidence indicating that the Supreme Court recognizes the right to the availability of the insanity defense.
The Nevada Supreme Court noted that while in Leland v. Oregon, the U.S. Supreme Court ruled that the procedural method for determining legal insanity is, for the most part, a state's prerogative, the court also made clear in Leland that the defense itself could not be abolished. Leland v. Oregon, 343 U.S. 790, 96 L. Ed. 1302, 72 S. Ct. 1002 (1952); See also Morissette v. U.S., 342 U.S. 246, 250-51, 96 L. Ed. 288, 72 S. Ct. 240 (1952); Penry v. Lenaugh, 492 U.S. 302, 333, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989). In addition, Justice Cardozo announced the general policy that a state "is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness, unless in so doing it offends some principle of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 78 L. Ed. 674, 54 S. Ct. 330 (1934).
Leland, Morissette, and Penry all recognized the basic elements and principles of the intent requirement: To make a crime cognizable by human laws, the will to act must accompany the act itself. Based on the U.S. Supreme Court's policy with regard to this issue, Nevada predicted that the Court would rule that the state has the authority only to balance the interests with regard to the procedural intricacies of the defense, not the authority to abolish the defense altogether.
The Utah, Montana, and Idaho courts also gave Justice Rehnquist's dissent in Ake v. Oklahoma a lot of weight. The Nevada Supreme Court found Rehnquist's isolated comment to be clearly contrary to the spirit of the majority of the Court with regard to this issue.
The Nevada Supreme Court found that its opinion, from a historical perspective, accurately follows Nevada's legislative scheme on this subject. For instance, the definition of murder, under Nevada law, is the "unlawful killing of a human being, with malice aforethought, either express or implied . . ." In effect, the 1995 amendments ignored the controlling underlying statutory requirements in abolishing the defense. The Nevada Supreme Court thus expressly rejected the current Mens Rea Model, finding the present statutory scheme internally conflicting. The Court noted that a "mens rea model statutory scheme is permissible as long as a defendant is allowed to introduce evidence to show he lacked the mental capacity to form the intent to do the act, regardless of whether or not he knew the act was wrong."
The Court concluded: "Anytime a statute requires something more than the intent to commit a particular act, then legal insanity must be a viable defense to the crime and involves both tests under the M'Naghten Rule." This ruling respects the legislative role of deciding the appropriate method for presenting the issue, whether it be through an affirmative defense or through a rebuttable presumption of sanity, as well as the standard to be used in deciding the issue. It prohibits only the abolishment of the doctrine or the creation of a definition that "undermines a fundamental principle of our system of justice." According to the Nevada Supreme Court, the 1995 Nevada amendments failed to recognize this fundamental principle.
It is likely that the U.S. Supreme Court will hear this case, or another begging the same question, within the next term or two. Until then, the debate will undoubtedly continue.
1 These cases held that it is a fundamental principle of criminal law that intent requires reasoning powers + animus.
2 "It is highly doubtful that due process requires a State to make available an insanity defense to a criminal defendant..." Justice Rehnquist's dissent, Ake v. Oklahoma, 470 U.S. 68, 91, 84, L. Ed. 2d 53, 105 S. Ct. 1087 (1985).
3 "To qualify as being legally insane, a defendant must be in a delusional state such that he cannot know or understand the nature and capacity of his act or his delusion must be such that he cannot appreciate the wrongfulness of his act, that is, that the act is not authorized by law," Finger at 5.
