Insanity Defense Plea Task Force Report

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A fifteen member interdisciplinary Task Force appointed by Secretary of Human Resources Joseph Fisher has proposed a comprehensive agenda for re-defining and codifying Virginia's laws relating to the defense of insanity and the disposition of persons acquitted by reason of insanity. The recommendations of the Insanity Defense Plea Task Force were submitted to the Governor in early December and will be presented to the General Assembly for its consideration in 1983.

Although agreeing unanimously to recommend neither the abolition of the defense of insanity nor the creation of a guilty but mentally ill verdict, the Task Force expressed concern about cases in Virginia in which the insanity defense has been improperly invoked in the past and, accordingly, focused its attention on refinements in the defense that might reduce its potential for abuse. Two major weaknesses in the current insanity defense law were identified: the limited utility and questionable validity of the irresistible repulse test and the absence of any clear guidance as to the sorts of mental disorders that may qualify as mental disease within the meaning of insanity.

The majority of the Task Force concluded the irresistible impulse instruction opens the door to moral mistakes in the administration of the defense in cases involving "temporary berserkness" or "loss of control" by otherwise normal individuals--conditions that most observers agree rarely rise to the level of legal insanity.

Furthermore, the observation was made that because of the elusiveness of the concept of volitional impairment, experts are invited to testify on issues beyond their expertise, such as whether an "impulse" was "irresistible" or was merely "unresisted." For these reasons, the Task Force recommended the elimination of the irresistible impulse test.

The Cognitive Test

An essential corollary to the Task Force's proposal to eliminate the irresistible impulse defense, however, is its proposed redefinition of the cognitive test for insanity in Virginia. Some severely disordered, psychotic defendants may "know" right from wrong in a superficial, intellectual sense but may not have a meaningful understanding of the significance of their conduct, the Task Force observed. In order to make it clear that the defense is meant to be available to such defendants, the Task Force proposed that the language "was unable to appreciate the wrongfulness of his conduct ..." be used to define the level of cognitive impairment required for insanity. This language has been incorporated into the insanity laws of most jurisdictions in recent years and is universally supported by legal scholars and mental health experts.

The Task Force also recommended that that part of the existing cognitive test requiring that …