INSANITY DEFENSE 1

The Intersection of Psychology and Law:

Exploring Social Issues and Social Problems Relating to the Insanity Defense

Daniel Guenther1

Washington University in St. Louis

Abstract

This paper explores the intersection of psychology, especially mental health, and the

criminal justice system. Persons that can be legally declared to have been insane at the

time they committed a crime have special considerations from both a social and judicial

viewpoint. Moreover, public perceptions that originate from misconceptions about the

prevalence of the insanity defense may serve to delegitimize the American legal system.

Sixty four students at Washington University in St. Louis were surveyed in order to

confirm or deny statistics that the prevalence of the insanity defense is often

overestimated. In addition to asking what the respondent thought the rate of Not Guilty

by Reason of Insanity (NGRI) was, their view (support, oppose, or other) of the death

penalty was recorded. These results were then compared and analyzed to previous studies

and literature on the insanity defense. Findings indicated that public overestimation of the

insanity defense prevalence is evident, and also correlated to attitudes on capital

punishment.

1
Undergraduate at Washington University in St. Louis. Corresponding email: dsguenth@wustl.edu
I would first and foremost like to thank Dr. Leonard Green, Professor of Psychology at
Washington University in St. Louis for assisting me in narrowing my research topic and giving me
direction to start my paper. I would also like to thank Drs. Joy Kiefer, Mark Smith, John Geiger, Lawrence
Weinstein, Mark Hathaway, and Jennifer Eno Louden. Lastly, an enormous thank you to Tim Bono,
Psychology PhD student at Washington University in St. Louis, for meeting with me to go over the basics
of conducting and writing a research paper, and introducing me to Aaron Weidman, junior at Washington
University in St. Louis who was invaluable in proofreading and making suggestions, and basically teaching
me APA style.
INSANITY DEFENSE 2

Introduction

If sanity and insanity exist, how shall we know them? That was the question

perplexing Dr. D.L. Rosenhan, Stanford Professor of Psychology and Law in 1973.2 This

question led him to carry out a famous psychological experiment: eight “pseudo-patients”

who were not mentally ill checked themselves into hospitals and claimed to be hearing

voices, in an attempt to gauge whether the hospitals’ staff could distinguish the sane from

the insane.3 What led to the focus of this paper was just a brief footnote4 in his paper

which stated that after the pseudo-patients had admitted themselves, Rosenhan acquired

legal counsel to prepare writs of habeas corpus in the event that there was any difficulty

having the pseudo-patients discharged. The motivation behind this paper comes from the

interesting interactions that occur when psychology meets the law.

This paper focuses on the issues surrounding the insanity defense, and the problems

that can arise from the public perception that it is being used as a loophole for criminals.

“Insanity” is not a psychological term that defines a person’s state of mind. 5 Even

psychosis, which is a closer psychological cousin of insanity, has been challenged as not

being uniformly recognizable.6 When the study of psychology comes into the courtroom,

the subject of the arguments is the insanity defense.

Not Guilty by Reason of Insanity (NGRI) is an affirmative defense used when the

defendant, as a result of a severe mental disease of defect, was “unable to appreciate the

2
For the full account of the famous experiment, see, D. L. Rosenhan, On Being Sane in Insane Places, 179
Science 250 (1973).
3
Id., at 251.
4
Id., at 258, footnote 8.
5
Interview with Dr. Leonard Green, Professor of Psychology, Washington University in St. Louis, in St.
Louis, MO. (Nov. 20. 2009).
6
For example, J. Nielsen et al., Do we Agree about when Patients are Psychotic?, 118 Acta Psychiatr.
Scand. 330 (2008).
INSANITY DEFENSE 3

nature and quality or the wrongfulness of his acts.”7 The insanity defense has existed in

modern form since at least since 1843 when Daniel M’Naughten was sentenced to

Broadmoor mental institution instead of prison for his attempted assassination of the

English Prime Minister Robert Peel. The insanity defense evolved over next centuries

and came to be applied as the 1954 Durham rule, then the American Law Institute (ALI)

standard, and currently reads as “lacks the capacity to appreciate the wrongfulness of his

or her conduct.”8

Insanity defense research and criticism seemed to hit an all time high in response to

John Hinckley’s attempted assassination of Ronald Reagan in 1982.9 Hinckley was found

not guilty by reason of insanity and committed to a mental facility. In a 1986 telephone

survey: 91% of respondents agreed “that judges and juries have a hard time telling when

defendants are insane”; 89% agreed that “the insanity defense allows dangerous people

out on the streets”; 89% agreed that "the insanity defense is a loophole that allows too

many guilty people to go free”. Similarly, a 1979 study found that 90% of respondents

agreed that “the insanity defense is used too much— too many people escape

responsibilities for crimes by pleading insanity.”10

Clearly, in the wake of such a high profile case involving the attempted assassination

of a president, public perception of the insanity defense was negative. The present study

was conducted to see if the common view of the insanity defense 1980s still holds true

today.

7
18 U.S.C., Chpt. 1 § 17, “Insanity defense”.
8
See Robert G. Meyer & Christopher M. Weaver, Law and Mental Health : A Case-Based Approach
(2006), at 23, for a concise explanation of all three standards and history.
9
Valerie P. Hans & Dan Slater, John Hinckley, Jr. and the Insanity Defense: The Public's Verdict, 47
Public Opin. Q. 202 (1983), Meyer and Weaver supra note 8, et al., all contain passages specifically citing
the Hinckley case as a turning point of sorts.
10
Carmen Cirincione, Eric Silver & Henry J. Steadman, Demythologizing Inaccurate Perceptions of the
Insanity Defense, 18 Law & Hum. Behav. 63, 63-70 (1994), citing a study by Pasework and Seidenzahl.
INSANITY DEFENSE 4

Research Question

The purpose of the primary research survey was to gather data that would supplement

a 2007 study11 by Angela Bloechl et al. and Drs. John Geiger and Lawrence Weinstein’s

2008 study12 . The purpose of Geiger’s study was to see how people defined insanity,

while Bloechl et al. measured death penalty attitudes. Geiger and Bloechl used college

students as subjects: Geiger surveyed 177 students, and Bloechl 578 students.

For this paper’s research 64 college students primarily from Washington University

in St. Louis were surveyed via paper or online surveys. The survey13 asked a series of

nine questions on topics about the criminal justice system, two of which were originally

targeted to be measured:

(a) The insanity defense is used in _______ % of all felonies trials in the United

States.

(b) Of those trials, the defendant is found not guilty by reason of insanity (is

successful) what percentage of the time? _______

A third question was later recorded once preliminary results showed a possible

correlation between death penalty attitude and view on the insanity defense:

(c) Please write or mark a number:

(1) I generally support the death penalty
(2) I generally oppose the death penalty
(3) I choose not to answer/I don’t know/It depends

The other six questions, while yielding interesting results about perceptions of the

legal system, were placed in as dummy questions to decrease the likelihood that a

11
Angela L. Bloechl et al., An Empirical Investigation of Insanity Defense Attitudes: Exploring Factors
Related to Bias, 30 Int. J. Law Psychiatry 153 (2007).
12
John F. Geiger & Lawrence Weinstein, Definitions of Insanity in College Students, 42 College Student
Journal 990 (2008).
13
Appendix 1.
INSANITY DEFENSE 5

respondent would think the survey was about the insanity defense. Survey bias could

have occurred if the respondent knew that the survey was about the public’s belief about

the success rate of the insanity defense, due to the respondent thinking a particular

response was desired.

Given a trend of public discontent with the insanity defense, I hypothesized that

respondents would also significantly overestimate how often the insanity defense is

argued. Furthermore, I expected it could be inferred that this negative perception about

the insanity defense translates into a negative view of the entire U.S. legal system as it

pertains to punishment of the mentally ill.

Data

Over the one-week survey period, 64 students responded and of those, 62 were

recorded and analyzed.14 For all respondents, the average response for “The insanity

defense is used in _______ % of all felonies trials in the United States” was 40%.

Respondents estimated that the insanity defense “succeeded” 35% of the time on average.

As mentioned, death penalty attitudes (oppose, support, other) were also recorded

and sorted. Death penalty (DP) supporters believed that in 45% of felony cases in the

United States the NGRI defense was argued, and the defendant is successfully acquitted

45% of the time.15 DP opponents estimated 30% as the occurrence rate, and 25% as the

success rate.16 Undecided or unknowns returned the highest estimations of 54% for

occurrence and 41% for success rate.17

Sources of Bias
14
One result was rejected as for being incomplete and the other was not returned in calculable terms. The
non calculable answer was from a death penalty supporter who responded, “too many” to both insanity
defense questions.
15
See Table 2.
16
See Table 3.
17
See Table 4.
INSANITY DEFENSE 6

The survey suffered from a convenience bias by using almost entirely Washington

University students, which by some demographic standards do not fit the trends of the

entire U.S. population. While using an undergraduate population has representation

problems, when used with other comparable studies it can still be reliable and fairly

robust. 18 The sample size was not as large as desirable, but time constraints restricted how

many people could be surveyed.

Discussion of Results from Sociological Perspectives

As Silver 1994 noted, the actual rate of NGRI plea occurrence in U.S. felony cases is

less than one percent, and the acquittal rate is around 26%.19 Clearly all survey

respondents overestimated usage and success rate of the insanity defense—on average

over 40%.

Such gross overestimation of these facts by average citizens indicates that

misinformation is guiding people’s perceptions about the legal system. Everyone

surveyed was of jury eligible age. Whether someone is or was insane when a crime was

committed is determined by twelve lay persons who are supposed to uphold legal

standards. When a verdict is returned as not guilty by reason of insanity, there is a

significant population group that is going to misunderstand the ruling and possibly feel

justice was not served.

Despite its low actual rate of occurrence, the NGRI defense is a heated issue.

Politicians have called it “unconscionable abuse”20 and “a legal monstrosity”21 among

other things. Additionally, politicians who feel they need to portray themselves as “tough

18
Bloechel et al., supra note 11, at 155.
19
Silver, supra note 10.
20
Rudolph J. Gerber, The Insanity Defense (1984).
21
Bloechl et al., supra note 11.
INSANITY DEFENSE 7

on crime” would likely find it hard to declare themselves supporters of the insanity

defense or more lenient sentencing.

In an interesting irony, Ronald Reagan, whose attempted assassination spurred so

much discussion of the insanity defense, is quoted as saying, “We don’t need any

sociology majors on the bench,” speaking of new federal judges while campaigning for

Republican senators.22 While the former President had understandable animosity for the

insanity defense, rejecting all sociological approaches overlooks too many facts that show

that the controversy over the insanity defense exists at an intersection between law and

psychology. This crossover of two disciplines on one single social issue necessitates that

every side is considered: the plaintiffs and defendants, the mentally ill and the public, the

lawmakers and the psychologists.

To assess the implications of the negative, even hostile, attitudes towards the

insanity defense, I will examine this issue from three sociological perspectives:

functionalism, conflict theory, and symbolic interactionism.

A functionalist perspective tends to view society as working correctly when all

social groups are interacting in a balanced and productive manner.23 Dysfunctions, or

aberrations in the established social setting, are seen as the vehicle for social problems.

Under a functionalist viewpoint, the issue of insanity and law is one of insuring criminal

acts are punished. Crime is the ultimate form of deviance that undermines social

harmony, and criminals must be punished. Functionalists focus less on any given

individual but instead on how societal functions can be maintained. Of the three

perspectives, functionalism is the most likely to be critical of the insanity defense.

22
. Michael L. Perlin, Myths, Realities, and the Political World: The Anthropology of Insanity Defense
Attitudes, 24 Bulletin of the American Academy of Psychiatry & the Law 5 (1996).
23
Linda L. Lindsey & Stephen Beach, Sociology (2004).
INSANITY DEFENSE 8

Conflict theory, largely based off the work of Karl Marx, focuses on one group’s

power over another.24 This perspective would see the insanity defense as integral to

defending individual defendants’ rights against the police power of the larger majority.

Conflict theorists would argue that the power struggle of the insanity defense issue is

between the popular majority with their misconceptions, and the mentally ill defendant

who needs help or treatment, not jail. Functionalism and conflict theory tend to be more

or less antithetical to each other.

While the functionalist and conflict theorists offer opposing views over whether

the insanity defense is good public policy, symbolic interactionism offers the most

interesting philosophical discussion of applied psychology in law. “Definitions of the

situation” are what underlie the interactionist view.25 The Thomas Theorem, a good

summation of interactionism, seems particularly fitting for the issue of insanity in legal

settings: “If men define situations as real, they are real in their consequences.” In other

words, if people think the insanity defense is being overused to let criminals off the hook,

then essentially, it is occurring. Negative views of mental illness, 26 coupled with negative

views of the insanity defense, form the setting for public opinion based on

misinformation which undermines the legitimacy of the American judicial system.

Conclusions and Further Research

My results confirm one of Bloechl et al.’s findings that the public vastly

overestimates the prevalence of the insanity defense.27 My survey research found that

24
Id.
25
Id.
26
Which Bruce Winnick in Ambiguities in the Legal Meaning and Significance of Mental Illness, 1
Psychology, Public Policy, and Law 534 (1995), points out, is “socially constructed, more normative in
nature than descriptive”.
27
Silver (supra note 10), Bloechel et al. (supra note 11), Perlin (supra note 22), as well as George L. Blau
& Hugh McGinley in Use of the Insanity Defense: A Survey of Attorneys in Wyoming, 13 Behav. Sci. Law
517 (1995), all state public perceptions are consistently wrong in estimating NGRI rates.
INSANITY DEFENSE 9

death penalty supporters did overestimate insanity defense prevalence and acquittal

success rates more than opponents if the death penalty. It is plausible to view death

penalty supporters as generally functionalists, and opponents as conflict theorists. These

sociological views would then fit with the rates of overestimation provided by the

respondents. Based on these preliminary results, I conclude that having a supportive view

of the death penalty is likely an indicator of also more greatly overestimating the

prevalence of the insanity defense.

Bloechl et al. found a similar relationship between their Death Penalty Attitude

Survey and their Insanity Defense Attitude Survey.28 They found that having a favorable

attitude towards capital punishment was the greatest indicator for a negative attitude of

the insanity defense. My work supplements the present literature by providing evidence

that a favorable view of capital punishment is also positively correlated with great

overestimation of insanity defense usage and success rates.

So, do these false perceptions of the insanity defense effect the legal system?

Many trials, such as John Hinckley’s, 29 involving NGRI defenses tend to be highly

publicized and sensational, and when the insanity defense results in acquittal30 a common

perception is that there was a miscarriage of justice.

Further research should investigate the calculable effects of public mistrust of the

NGRI defense. It is clear that people assume the insanity defense is occurring more often

than it is. Does this have a larger effect on the judicial structure of the United States, or

on the stigmatization of mental illness? Is the very nature of democratic justice through
28
Bloechl et al., supra note 11.
29
United States v. Hinckley 672 F.2d 115 (1982).
30
It should be noted that in many cases, persons acquitted are not any “better off” than had they been
sentenced to prison. In fact, the United States Supreme Court ruled in 2004 that those acquitted by NGRI
cannot petition for Habeas Corpus to challenge their detainment. See Jerome Nwokike, Federal Insanity
Acquittees, 33 J. Am. Acad. Psychiatry Law 126 (2005).
INSANITY DEFENSE 10

juries of one’s peers tarnished by misconceptions? Many researchers have argued that

jury bias occurs when NGRI is argued in a trial and that empirical evidence is hardly a

big influence on jury decisions. 31 Research to conduct a cost benefit analysis of

maintaining, reforming, or abolishing the insanity defense would also be beneficial to

understanding the social issues raised by the insanity defense. Insanity and mental illness

become social problems if and when there are clear negative impacts in terms of

perceptions of the legitimacy of the justice system, or greater stigma on mental illness.

31
For example, Jennifer L. Skeem & Stephen L. Golding, Describing Jurors' Personal Conceptions of
Insanity and their Relationship to Case Judgments, 7 Psychology, Public Policy, and Law 561 (2001);
Jennifer Eno Louden & Jennifer L. Skeem, Constructing Insanity: Jurors' Prototypes, Attitudes, and Legal
Decision-Making, 25 Behav. Sci. Law 449 (2007); and Winsor C. Schmidt, Supreme Court Decision
Making on Insanity Acquittees Does Not Depend on Research Conducted by the Behavioral Science
Community: Jones Vs. United States, 12 Journal of Psychiatry & Law 507 (1984).
INSANITY DEFENSE 11

Tables and Figures

Table 1.1 ALL

Average % NGRI 40.485
Average % successful 35.05
n= 62
Table 1.2 Generally Support the Death Penalty
Average % NGRI 45.904
Average % successful 45.047
n= 21

Table 1.3 Generally Opposed to the Death Penalty

Average % NGRI 30.896
Average % successful 25.107
n= 29

Table 1.4 Undecided, Choose to not respond

Average % NGRI 54.175
Average % successful 41.272
n= 12
Table 1.5 Nationwide Actual Percent
Average % NGRI 0.93
Average % successful 26.27
 INSANITY DEFENSE 12

Figure 1.1
Insanity Defense Statistics
INSANITY DEFENSE 13

Appendix 1

[The survey that was issued to the respondents]

Please answer to the best of your abilities and remember this is completely anonymous
and confidential. You can leave any question blank you do not want to answer. Thank
you for your time.

Social Issues Survey

1. What do you think the conviction rate of felons in the United States is?

2. What percent of felonies do you think are handled through plea bargains?

3. Please write or mark a number:

(1) I generally support the death penalty
(2) I generally oppose the death penalty
(3) I choose not to answer/I don’t know/It depends

4. Vehicular manslaughter is a felony crime in all 50 states?

Please circle one answer for statement 4: True False

5. Please answer both

(a) The insanity defense is used in _______ % of all felonies trials in the US.

(d) Of those trials, the defendant is found not guilty by reason of insanity (is
successful) what percentage of the time? _______

6. What do you think the homeless population in the United States is?

7. What do you think the number 1 felony crime committed in the United States is?

8. How many people do you think are currently incarcerated in all of the United States
federal prisons combined? _______________