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Failure of insanity defense
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Was James Holmes — convicted on Thursday of the 2012 massacre at the Aurora movie theatre — nuts? 

Of course he was nuts. Does a sane person go into a movie theatre and just start shooting — not for a war or cause — for no reason at all? I mean, if he’s not “insane,” who is? Whether he should be held criminally responsible is an entirely different matter.

The insanity defense was one of the hottest, most debated issues in the law for decades, liberalized in many courts, notably D.C’s, in a movement to provide treatment and not punishment to the mentally ill. After John Hinckley, who had been charged with shooting President Reagan, successfully used the insanity defense, it came up against a counter-reform movement.

In the reform days, the question was supposed to be simplified to asking the jury whether the conduct was the product of a mental disease or defect, with courts consulting experts to make these determinations.

Which led, of course, to dueling experts (the defense called four in the Aurora case). The simple test was actually not so simple. What does it mean to be the “product” of mental disease? Does it mean that if James Holmes weren’t psychotic, he wouldn’t have done this? As to whether the guy suffers from a disease or defect, can there really be any disagreement?

But that can’t be enough; honestly, it never could be. If you’ve ever hung around the criminal courts for any period, you’ll run into a lot of people who just aren’t right in some rather significant way. And I’ll admit that my first instinct upon encountering such a person, particularly if he happens to be in shackles, is not to hope that enough attention is given to his tragic upbringing or fragile psyche or even those brain lesions we might someday see or the genetic marker for violence that might someday be identified — my instinct is to hope that he gets what’s due him and to sit far away in the courtroom. Real far away.

So in practice, because conditions in state mental hospitals in many places compare poorly with all but the worst jails, and since fronting a successful defense requires money for experts, which is something most of these guys in shackles don’t have, the insanity defense doesn’t get used very much. And the way the instructions to the jury are written now, “sanity” — by the way, “insanity” and “sanity” are not medical diagnoses, just legal constructions — requires only that you know the difference between right and wrong. Holmes’ secrecy and preparation before the attacks would satisfy that criterion. Almost anything would be enough to satisfy that criterion.

Was anyone really holding her breath about what the verdict would be? Not exactly an OJ moment. You go to the movies on a Friday night in suburbia, or your kids do, and you do not expect — and our society cannot tolerate — fear and the threat of violence. We don’t want to live that way, and whether it deters one person or not, this guy is certainly not going to “get away with it” in the state hospital.

So why keep that legal defense on the books? Some people say we shouldn’t. It persists, I think, not because it offers a real “out” but precisely because it doesn’t. Even at the height of reform, there was a fair amount of evidence that the exact words of the instructions actually didn’t matter very much to jurors. 

But the fact that we recognize such a defense speaks to how our system, as an essential element of its fairness, punishes people not for bad luck but for bad choices — even if those bad choices are conditioned by the usual list of deprivations, or the more scientifically phrased ones tossed out by the paid experts. Most people with all those same deprivations manage to control themselves, and, if they can’t, it is precisely such people who society must control. The insanity defense is, as one of my old colleagues (who taught a course on law and psychiatry) used to call it, “A pimple on the nose of the law.”