What Happens To The Criminally Insane, After Court

Guests

Harry Jaffe, reporter, Washingtonian Magazine
Dr. Phillip Resnick, forensic psychiatrist
Lynda Frost, lawyer and director of planning and programs, Hogg Foundation for Mental Health

John Hinckley Jr. faces a hearing to determine whether or not he can be released from a mental health facility to care for his ailing mother. The case raises questions about the role of the insanity defense and what happens to the criminally insane after they leave the courtroom.

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NEAL CONAN, HOST:

This is TALK OF THE NATION. I'm Neal Conan in Washington. Two cases 30 years apart raise new questions about the criminally insane. Proceedings continue to determine if Jared Loughner is fit to stand trial for the attempted assassination of Congresswoman Gabrielle Giffords in Tucson nearly a year ago.

And this week, a judge here in Washington considers arguments in the case of John Hinckley, Jr., who continues to live at St. Elizabeth's Hospital almost three decades after he shot and injured President Ronald Reagan and three others. A jury found Hinckley not guilty by reason of insanity. His doctors say he's no longer a threat.

If you've been involved in legal insanity cases as a lawyer, judge, juror or prosecutor, what don't we know about this issue? Give us a call, 800-989-8255. Email us, talk@npr.org. You can also join the conversation at our website. That's at npr.org. Click on TALK OF THE NATION.

Later in the program, as Egypt begins to elect a new parliament, Islamists and democracy on the Opinion page this week. But first, the criminally insane. We begin with Harry Jaffe, who's been writing about the Hinckley case for Washingtonian magazine and joins us here in Studio 3A. Thanks very much for coming in.

HARRY JAFFE: Pleased to be here, thank you.

CONAN: And John Hinckley, Jr. has been released from St. Elizabeth Hospital before for visits, even extended visits, with his mother. What's different this time?

JAFFE: Well, he actually has been freed with a lot of oversight and supervision about a third of the year. So he's outside of the care and the confinement of St. Elizabeth's for weeks at a time. What's happening now is that his lawyers are advocating that he be essentially released completely.

Completely means that he no longer lives, no longer resides at St. Elizabeth's mental institution, which is overlooking Washington, D.C.'s downtown. But he can most likely live with his mother, who is now at a gated community in Williamsburg, Virginia.

CONAN: It's a wealthy family, and they have resources, but it's been some years since, in fact, his doctors said, as far as we can tell, his delusions are in remission, he's off his antipsychotic medication, he's not a threat to himself or anybody else.

JAFFE: Right, and that is, in fact, the judicial benchmark. You know, Judge Barrington Parker, after a seven-week trial, instructed the jury that if he is deemed to be no longer a danger to himself or to others, he gets to be essentially released.

And, you know, by the United States system of jurisprudence, if you are determined to be not guilty by reason of insanity for whatever you do, if you shoot your neighbor or, you know, try to assassinate the president, after a certain period of time, if you are deemed by the medical mental health professionals to be no longer under the spell of whatever disease you may have had, you get to take a walk.

CONAN: And there are those, as you point out in your piece, who say wait a minute, if you try to shoot the president of the United States, you should either face the death penalty or spend the rest of your life behind bars.

JAFFE: Well, that would be Ron Reagan, Jr., his son, and that would be Nancy Reagan, principally. But I mean let's face it: Ronald Reagan was not just, you know, your run-of-the-mill president. Ronald Reagan was, and still is, an icon for the Republicans. He certainly is - was the, you know, when I think of conservatives, I think of Barry Goldwater. When most people think of conservatives, they think about Ronald Reagan.

And so, you know, to think, if you're the average American or the serious Republican, that we would allow a man who tried to shoot Ronald Reagan to go free, it's just anathema, it can't happen.

CONAN: On the other hand, the judge faces a situation where he was found not guilty by reason of insanity. If no longer insane, the not guilty part should apply.

JAFFE: Absolutely. That's what the law says, and if we're a country of laws and not a country of men, then there's really no way of looking at this other than John Hinckley should be freed, you know, with some conditions. And I think he'll always have some conditions.

Like, you know, trust me, the United States Secret Service will always keep tabs on John Hinckley, Jr., no matter where he goes. But he was in confinement - this happened in 1981. He tried to assassinate the president in 1981. Within 10 years the medical professionals, the psychiatrists, at St. Elizabeth's said he is no longer delusional. He no longer is under the spell of the delusions which caused him to take the - to attempt to take the life of a president.

He still has many neurotic problems, but some of us walking around these days down the streets of Washington, D.C. are neurotic.

CONAN: Narcissism not confined to attempted assassins.

JAFFE: I think that most politicians have a certain narcissistic personality.

CONAN: So in that situation, the - well, is it possible - and one of the things that was interesting, as you said, the judge instructed the jury that if you find him not guilty by reason of insanity, there is a possibility he could walk. You spoke with the - one of the jurors, in fact I think it was the foreman in the jury: We did understand that, and if he is no longer a threat, hasta la vista.

JAFFE: Interestingly enough, the jurors appointed or elected the youngest member of the jury - he was 22 years old, his name was Lawrence Coffey, and I did track him down, and he was very straightforward, as you would expect, you know, kind of an average juror to be. He said: Well, you know, you have to be crazy to try and shoot the president of the United States. Of course he was insane.

Well, I don't necessarily buy that. That's a little bit too simplistic. The difference between John Hinckley, Jr.'s attempt and maybe Sirhan Sirhan's attempt to kill J.F. - you know, Robert Kennedy, was that this fellow, when he was, you know, 25 years old, didn't really know very much about Ronald Reagan, was not a political guy, didn't want to take over the country.

He was trying to kill Ronald Reagan to get the attention of Jodi Foster, who...

CONAN: The actress.

JAFFE: The actress. And so clearly it was not quite a crime with a lot of forethought about not wanting to have this guy be president any longer. It wasn't a political act. It wasn't a personal act. It was something else entirely.

So Coffey said yes, he was guilty - I'm sorry, yes, he was insane. And then secondly, he said: Well, of course he should go free. This is now talking about John Hinckley, Jr. right now. Lawrence Coffey, the former juror, said he should go free. There are people who have actually committed murders who do their time and are then free to walk the streets. Why not this guy?

CONAN: Philip Resnick is a physician and professor of psychiatry at Case Western Reserve School of Medicine, also past president of the American Academy of Psychiatry and the Law and joins us now from his office in Cleveland. Dr. Resnick, nice to have you with us today.

DR. PHILLIP RESNICK: Thank you.

CONAN: And I wonder: Can you appreciate the position of the judge in this case?

RESNICK: Yes, I do, and the reality is that the general public perceives people who are found insane as beating the rap, when some studies actually show persons who are found insane spend, on average, a bit longer with loss of freedom than those who are convicted.

And Hinckley is an example of someone who has spent 30 years, and of course the more infamous the crime, the greater the political pressure to hold such persons even longer. But of course someone who is simply mentally ill, the average length of stay in a hospital is less than two or three weeks. So it's certainly not surprising that within 10 years delusions would be given up.

CONAN: Some would say the conditions under which he was held at St. Elizabeth's aren't exactly those at top security max prisons in the federal system. But nevertheless, he certainly lost his freedom, and that's considerable.

In any case, it is credible to say that somebody who committed such a crime can be cured?

RESNICK: Yes. For example, someone with a psychotic depression certainly can be fully cured. With schizophrenia, they can be markedly improved. Their symptoms can be in remission. But they might still heal with some residual difficulty. But being cured or improved is a separate issue from being non-dangerous, which is the critical issue in the release decision.

CONAN: How sure do you have to be to release such a person?

RESNICK: Well, that's ultimately a judicial decision, and all psychiatrists can say is that there's a very low risk that he will re-offend. No one can ever can guarantee that no one will ever re-offend.

CONAN: We're talking about what happens to the criminally insane. If you've been involved in such a case as a judge or prosecutor, perhaps a juror, give us a call, 800-989-8255. Email talk@npr.org. And Mark(ph) is on the line calling from East Lansing in Michigan.

MARK: Yes, good afternoon, thank you.

CONAN: Sure.

MARK: I am a career prosecuting attorney. I've been a prosecutor for over 35 years. And I've had several cases involving the criminally insane in homicides. And my problem is, from a prosecutorial standpoint, psychiatry and psychology are soft sciences. There is no exact answer, and in my experience they've been frequently not only wrong but deadly wrong.

One in particular I'm familiar with and was involved in to some extent was a serial murderer from Michigan named Gary Addison Taylor, who was found not guilty in the early 1980s by reason of insanity. He was assigned to a mental institution, and the psychiatrist who recommended to the court that he be locked up in a mental institution actually wrote in the report: Anyone who ever seriously considers letting this man go ought to be locked up with him. That was actually written into the report.

A few years later, another psychiatrist deemed him safe to go home on a weekend pass, and he walked away and killed another five women, at least, and is seriously suspected in several other killings after that time. And that's a documented case out of Michigan and Texas and the state of Washington.

CONAN: We get your point, Mark. Of course, prosecutors use psychologists and psychiatrists in their cases too. But wanted to give Dr. Resnick a chance to respond.

RESNICK: Certainly there are exceptional cases, but I think interestingly the public has zero tolerance for recidivism. When we let an armed robber out of prison with three armed robberies, we know there's more than a 33 percent chance he's going to reoffend, we still let him go. But if someone is found not guilty by reason of insanity, we act as if - if there is a one-tenth of one percent recidivism, that's categorically unacceptable.

CONAN: A difference between armed robbery and murder too. But in any case, Mark, thank you very much for the call. We're going to continue this conversation. We're talking about John Hinckley, Jr. and what happens to the criminally insane after they leave the courtroom.

If you've been involved in legal insanity cases, what don't we know about this issue? 800-989-8255. Email us, talk@npr.org. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

CONAN: This is TALK OF THE NATION from NPR News. I'm Neal Conan. We're talking about the criminally insane. No precise number of defendants who are declared not guilty by reason of insanity, though that number is believed to be small.

The public outrage after John Hinckley, Jr. was declared criminally insane 30 years ago led the Congress and half the states to enact changes in the insanity defense. Several states did away with the insanity claim altogether. Our guests are Harry Jaffe of the Washingtonian magazine. His piece on John Hinckley and this week's hearing to determine whether or not he is a threat ran in the October issue of the magazine.

And also with us, Dr. Philip Resnick, a physician and forensic psychiatrist who works as a professor at Case Western Reserve School of Medicine in Cleveland. If you've been involved in legal insanity cases as a lawyer, judge, juror or prosecutor, family member, what don't we know about these issues? Give us a call, 800-989-8255. Email is talk@npr.org. You can also join the conversation at our website. That's at npr.org. Click on TALK OF THE NATION.

And just before the break, we were talking with a caller, said he was a prosecutor and that - cited several cases where psychiatrists had been wrong. Interesting, Harry Jaffe, in your piece in Washingtonian magazine about Mr. Hinckley, there was a recommendation as far ago as 1986 that he be declared - that his delusion was over.

JAFFE: Exactly. In 1986, the hospital staff basically reported that he was still narcissistic, but his delusions, which allegedly caused him to try to assassinate the president, were gone, and they supported Hinckley's desire to - basically to take off-campus tours, to leave St. Elizabeth's.

And the judge did some investigation on his own, found that in fact John Hinckley had been corresponding with Charles Manson, who is, you know, a mass murderer, and Ted Bundy, who was a mass murderer. They actually did an investigation of his room and found 57 photographs of Jodi Foster. This is in 1986.

CONAN: The object of his infatuation before the assassination attempt.

JAFFE: And his delusions, apparently. And so clearly at that point the psychiatrists at St. Elizabeth's were - I hesitate to use this word, but they were dead wrong. And he was clearly not in a situation where he could be trusted. And I think there's always been two schools of thought about John Hinckley, Jr., from the day that he entered St. Elizabeth's was, is he - is he ill? Is he delusional, or is he just getting it over on the system?

Clearly a smart man, and is he gaming the system, or is he impaired? And that still can be debated.

CONAN: And if he was gaming the system, Dr. Resnick, he gamed it into 30 years' incarceration, but nevertheless, psychiatrists are not suckers, for the most part, nor fools. They're used to dealing with such people.

RESNICK: Yes, actually, again, the public is very concerned about malingering, and of course malingering is faking, where someone pretends to be insane when they're not. Then, of course, once they're in the hospital as an insanity acquittee, then the concern is: Are they faking good? That is, someone who remains genuinely ill is not revealing it in order to get out.

So if someone really beat the system and faked to be found insane, then they would not be mentally ill and theoretically should be released, but of course judges are not likely to let them out in that circumstance.

CONAN: Lynda Frost is a lawyer and director of planning and programming at the Hogg Foundation for Mental Health at the University of Texas, Austin. She's written several books and articles about mental health in American law and joins us now from member station KUT in Austin. And nice to have you with us today.

DR. LYNDA FROST: Nice to be here, thank you.

CONAN: And I wonder: Have you thought about the Hinckley case and how these arguments are likely to hold up?

FROST: You know, I think in a case like the Hinckley case, where the offense is so shocking to us, we treat it very differently than most cases. We know the black letter of the law, but we just react differently when somebody tries to shoot the president.

So I wouldn't really guess as to how this specific case will turn out. But I think your speakers have raised some very important points about what actually happens in most cases with the insanity defense. It is very rare. It's something that we don't see every day. In fact, the American Psychiatric Association work group called it empirically unimportant. Defense attorneys consider it a defense of last resort.

So in roughly one percent of all felony cases is it even raised, probably in part because with most forensic evaluations, when experts are asked to do an evaluation on whether somebody is insane, they say no. They say that they're doing fine.

When the defense is raised, it's usually not successful. Three out of four times it is not successful. So nationwide less than one-half of one percent of all felony cases result in somebody being found not guilty by reason of insanity, and usually those happen through a plea bargain, where everybody agrees that that's the proper outcome.

So these cases really are very unusual. I think the conditional release question that we're looking at with the Hinckley case is an important mechanism for returning people to society. I know some people say if somebody tries to shoot the president, they should be locked up forever, we don't want to run the risk of that person being out in the community.

But we really don't live in a society where zero risk is possible, and there are constitutional and practical problems with keeping people locked up forever. Most forensic experts would agree that the safest way to return somebody to society from a maximum-security psychiatric hospital is with increments of decreasing structure and increasing freedom, and that's what the conditional release program attempts to do.

CONAN: Here's an email from Becky(ph) in Florence, Arizona: My youngest sister was murdered by her boyfriend back in 1990. He was ruled criminally insane. Her death was the second murder he'd committed. He is now about to get out. My sister's youngest daughter has been attending court hearings trying to plead that he remain incarcerated for everyone's safety.

I have heard that he has a new girlfriend now. I cannot believe the law is considering allowing him to be free. But Lynda Frost, again, if you're found not guilty by reason of insanity, once you're determined not to be insane, it's the not guilty part that applies, no?

FROST: That's true, and Becky, my sympathies for your loss. That's horrible. But it is true. The insanity defense has been around for centuries, essentially because we've made a moral determination that if at the time of the act the defendant doesn't know what they're doing or can't help what they're doing that punishment is appropriate.

And so at that point, once somebody has been found not guilty by reason of insanity, we're keeping somebody locked up for treatment purposes and for safety purposes. And if those reasons no longer apply, then as a constitutional requirement, somebody should be released.

CONAN: Let's get Bill(ph) on the line, Bill's with us from Stockton in California.

BILL: Hi, Conan. I'd just like to say that when it comes to sanity and insanity, there are different kinds, and people see them all differently. In the case of our family, my son has just returned from three months. He spent one in Berkeley, and then he spent another two in Reno in a psychiatric hospital, and as he's grown older, we've come to realize that he's never going to be completely normal.

A lot of psychiatric issues are temporary, transient, or can be resolved simply with basic medication. In his case, it just hasn't happened. And it got to the point that after six years on one medication, he was taking such a high level it became toxic, which resulted in one hospitalization after another. Psychiatric is not a simple issue.

CONAN: I understand that. Are you worried that he is a threat to either himself or others?

BILL: In the long term, absolutely. You know, we recognize that he could be a very productive member of society, but at the same time, you know, the realization is, how long is his stability going to last, because medications don't always perform as desired for as long as desired.

CONAN: Nor do people consistently take them. But Dr. Resnick, I think it's important to point out: Insanity is not a medical term, I don't think.

RESNICK: That's correct. It used to, historically, but in the last 50 years it's a legal term only, not a medical term.

CONAN: And Lynda Frost, the definition of insanity, as I understand it, also varies state-to-state, and of course the federal government has its own.

FROST: That's right. Each state determines what would the insanity standard be, and states have changed their insanity standards. In fact, as you noted, after the Hinckley cases, people did not like the outcome, and so state legislatures in 34 states changed their insanity defense statutes.

There are some interesting studies, though, that have found that the changes in the wording of the insanity defense seems to only make a moderate difference in terms of whether people are found not guilty by reason of insanity or not.

JAFFE: I would just add to that that the wording makes very little difference to juries. I think it makes more difference to forensic psychiatrists and psychologists, but juries tend to use their own primitive sense of when someone's so ill they're not responsible, separate from the nuance of the wording.

CONAN: And Dr. Resnick, I wonder, in your judgment, are juries righter or wronger?

RESNICK: Well, that's interesting. I've been asked the question: If a jury didn't agree with me, was I wrong? And the answer to that is not in my opinion. It doesn't mean that juries always get it right, but ultimately, juries make the final social, legal judgment about who is insane. So there is no absolute standard. It is a judgment, and I think it belongs with a jury.

CONAN: Bill, thank you very much for the call. We wish you and your son the best of luck.

BILL: We thank you guys for hearing us. Have a good day.

CONAN: And there is a moment, Lynda Frost, we have to point out and going back to the Jared Loughner situation where it is not necessarily a jury who at least initially decides whether he's insane or not but, well, medical advice to a judge who says whether he's able to participate meaningfully in his own defense.

FROST: That's right. Insanity looks at mental state at the time of the offense. But before someone can go to trial, they have to be competent to stand trial, and that looks at somebody's mental state at the time of the trial. So they're two different legal proceedings with two different standards. In almost all cases, if somebody is found not competent to stand trial, they can be restored to competency through a period of treatment and education. So it will delay a trial, but in most cases, they ultimately will be restored to competency and then the trial will move forward. And at that trial, the defendant can choose to raise an insanity defense. But they're two different legal doctrines.

CONAN: And indeed, as in the case there's dispute in the Jared Loughner case, can be forced to take medication in order to render him able to stand trial.

FROST: That's right.

CONAN: All right. Let's see if we get...

FROST: There...

CONAN: Go ahead.

FROST: There, of course, are - state procedures will differ in exactly how the restoration process will work and what the standards are, but competency to stand trial is a constitutional requirement under the 14th Amendment. So there are also a lot of commonalities across states.

CONAN: Lynda Frost is a lawyer and director of planning and programs at the Hogg Foundation for Mental Health at the University of Texas at Austin. Also with us is Dr. Phillip Resnick, a physician and forensic psychiatrist, professor at Case Western Reserve's School of Medicine in Cleveland, and Henry - Harry Jaffe - excuse me - is also with us here in Studio 3A, reporter and columnist for Washingtonian Magazine. His piece "Free John Hinckley" appeared in the October 2011 issue of Washingtonian. You're listening to TALK OF THE NATION from NPR News. Let's go to Gary(ph). Gary with us from Central Illinois.

GARY: Hello.

CONAN: Hi, Harry. Go ahead, please. Gary - excuse me.

GARY: Hey - I was just - I want to comment. I'm a probation officer for the federal system, and I guess what I want to lay in on was that when people get out of the federal system, as I assume Mr. Hinckley will, that there's a very detailed release plan that person is essentially going to be on probation supervision for the rest of her life or until the judge decides that even after they've been in the community for a certain number of years that they are safe to not have some oversight in the community, which gives some oversight to them taking their medications and following up with treatment and those sorts of things.

CONAN: Harry Jaffe, medication is not an issue, as I understand it, in the Hinckley case, and there was an interesting statement by his lawyer in your story saying, look, if the Secret Service wants to keep him on their list forever and do whatever kind of monitoring they want, if they want to shadow him, that's fine with us.

JAFFE: Barry Levine, who's John Hinckley lawyer, essentially said, you know, bring it on. We're not afraid of having as much supervision as you want, but he does want his client to have much more freedom. But I think that Judge Paul Friedman, who's the federal district judge who's been working on this case, handling this case, overseeing it since 2003, has gradually and very assiduously, determinately allowed him in phased releases but very, very closely watched, you know, 10, 15 separate, you know, steps that he has to follow on a daily basis.

And I think the caller is exactly right that there's no here, you know, have a nice life for John Hinckley Jr. There will always be a certain amount of supervision, no question about it.

CONAN: In fact, you raised an interesting point in your piece. There's not much of a life for John Hinckley to emerge to.

JAFFE: Well, let's say that there's a certain stigma to having attempted to kill Ronald Reagan. And, you know, if you are certainly over the age of 40 or 50, John Hinckley Jr. will always be in your head. And very specifically, he has tried to just get volunteer jobs while he was at his mother's home in Williamsburg, and a lot of people who work for libraries, who work for Salvation Army, who work for nonprofits, say no thanks. You know, John Hinckley is not welcome because we think that he is, you know, not, you know, should not be allowed out.

CONAN: Not an asset to the corporation.

JAFFE: Exactly.

CONAN: Gary, thank you very much for the call.

GARY: The fact that – I don't have a problem necessarily John Hinckley shouldn't be allowed out as much as given John Hinckley's history, as I think these places are more in the mode of they don't want to be on the newspaper if something goes wrong.

CONAN: Sure. I understand that, too. That's why he's not an asset, Gary.

GARY: Right, yes.

CONAN: Thanks. Email question from Sam(ph) in Wichita. Is it everyone who commits a murder insane? Phillip Resnick?

RESNICK: Absolutely not. And again, that's not an uncommon idea. But absolutely not, people have quite rational motives for killing. People kill for money. People kill for revenge. People kill for jealousy. And as Lynda Frost pointed out, it's a very small percent who are found insane, and that is usually when there is agreement between the experts for the prosecution and defense. And in most contested cases, it is a severe uphill battle for the defense.

CONAN: And more so after the John Hinckley case. Harry Jaffe, the hearing is Wednesday?

JAFFE: Wednesday at 9:30, federal district court here in Constitution Avenue, Washington, D.C.

CONAN: Thanks very much. And, Lynda Frost, the next step in the Jared Loughner situation, there are any number of hearings to determine his ability to stand trial?

FROST: Yes. The clinicians will report back on whether they feel that he has gained the skills that he needs to go to court and the court will determine if he's regained competency. If he hasn't, he presumably would be sent back for a further period of restoration. So it can be an iterative process between the clinicians and the court until the court either decides that he will never be restored to competency, which is unusual, or the court decides that he is competent, and the trial will then move forward.

CONAN: Lynda Frost joined us from member station KUT in Austin, Texas. Thanks very much for your time today.

FROST: Thank you.

CONAN: Dr. Resnick, appreciate it.

RESNICK: Sure.

CONAN: Phillip Resnick at Case Western Reserve's School of Medicine in Cleveland. And our thanks as well to Harry Jaffe, who wrote for the Washingtonian Magazine "Free John Hinckley." He joined us here in Studio 3A. Thanks very much for your time.

JAFFE: Pleasure to be here.

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