By Hafemeister, Thomas L.
Developments in Mental Health Law , Vol. 28, No. 1
Defense counsel, as well as prosecutors, must make many difficult strategic decisions in preparation for and in the course of a criminal trial. Arguably one of the most difficult of these decisions is whether to pursue an insanity defense on behalf of a defendant. However, there are many misconceptions associated with the insanity defense, some of which defense counsel may also hold.
Two common misconceptions are that the defense carries little, if any, risk for the defendant and that a successful defense results in defendants being quickly released from custody and allowed to return to the community. Available research indicates, however, that defendants who unsuccessfully raise the insanity defense are likely to receive an enhanced sentence, perhaps because (1) the defense essentially incorporates an acknowledgement that the defendant committed the charged crime and eliminates what otherwise might be lingering concerns about the defendant's possible innocence and (2) an assertion that the defendant suffers from a mental illness that contributed to a crime may result in the defendant being perceived as a continuing danger to the community.
In addition, research indicates that even if the insanity defense is successful, the defendant almost inevitably spends at least some time in custody and generally will spend more time in custody than if the defendant had pled guilty to the charged crime. In particular, if the defendant is found to be not guilty by reason of insanity (NGRI) of a serious crime, it will be very difficult for the defendant's attorney to secure the defendant's subsequent release back into the community, even after many years have passed, notwithstanding that the Supreme Court has held that an insanity acquittee can only be retained in the custody of the State for as long as the defendant continues to be mentally ill and dangerous. Foucha v. Louisiana, 504 U.S. 71 (1992), http://www.law.cornell.edu/supct/html/905844.ZO.html.
See Julie E. Grachek, The Insanity Defense in the Twenty-First Century: How Recent United States Supreme Court Case Law Can Improve the System, 81 IND. L.J. 1479, 1486-91 (2006), http://www.law.indiana.edu/ilj/ volumes/v81/no4/14_Grachek.pdf; Bruce Steele, Misconceptions Muddle Insanity Defense Debate, Law Lecturer Says, 35(5) UNIVERSITY TIMES: UNIVERSITY OF PITTSBURGH *1 (Oct. 24, 2002), http://mac10.umc.pitt.edu/ u/FMPro?-db=ustory&-lay=a&format=d.html&storyid=2711&-Find; David Frank, Lawyers: Insanity Defense Is 'Difficult Road', DAILY REC. & KAN. CITY DAILY NEWSPRESS, July 2, 2006, http://findarticles.com/p/ articles/mi_qn4181/is_20060702/ai_n1651361 1/?tag=content;col1.
At the same time, to ensure a fair trial, the Supreme Court has established that a right to counsel exists under the Sixth Amendment, and that this right is not met if a criminal defendant receives ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984), http://supreme.justia.com/us/466/ 668/case.html. Even though an insanity defense has a number of potentially adverse consequences, there is a frequent perception that this defense is or should be routinely employed by the defendant's attorney if the defendant has a psychiatric disorder. Indeed, it has been asserted that an attorney's failure to pursue an insanity defense, particularly when other legal defenses are not available, constitutes impermissible ineffective assistance by counsel.
However, while not addressing the potentially adverse impact of pursuing an insanity defense, the United States Supreme Court has held that adequate representation of a defendant, even when a defendant's mental illness is clearly established, does not require the pursuit of an insanity defense. In a case reviewed by the Supreme Court, the defendant had confessed that he stabbed his 19-year-old cousin nine times and then shot her four times. In California, when a defendant enters pleas of both not guilty and not guilty by reason of insanity, as was the case here, a bifurcated trial must be held, with a guilt determination made during the first phase and the NGRI plea addressed at a second hearing. …