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Reform of the federal insanity defense : hearings before the Subcommittee on Criminal Justice of the Committee on the Judiciary, House of Representatives, Ninety-eighth Congress, first session, on reform of the federal insanity defense, March 16 and 17, April 21, and May 12 and 17, 1983 online

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REFORM OF THE FEDERAL INSANITY DEFENSE



HEARINGS



BEFORE THE

SUBCOMMITTEE ON CRIMINAL JUSTICE

OF THE

COMMITTEE ON THE JUDICIAEY
HOUSE OF REPRESENTATIVES

NINETY-EIGHTH CONGRESS

FIRST SESSION

ON

REFORM OF THE FEDERAL INSANITY DEFENSE



MARCH 16 AND 17, APRIL 21, AND MAY 12 AND 17, 1983



Serial No. 21




Printed for the use of the Committee on the Judiciary



REFORM OF THE FEDERAL INSANITY DEFENSE



HEARINGS



BEFORE THE

SUBCOMMITTEE ON CRIMINAL JUSTICE

OF THE

COMMITTEE ON THE JUDICIAEY
HOUSE OF REPRESENTATIVES

NINETY-EIGHTH CONGRESS

FIRST SESSION

ON

REFORM OF THE FEDERAL INSANITY DEFENSE



MARCH 16 AND 17, APRIL 21, AND MAY 12 AND 17, 1983



Serial No. 21




Printed for the use of the Committee on the Judiciary



U.S. GOVERNMENT PRINTING OFFICE
21-253 O WASHINGTON : 1984



COMMITTEE ON THE JUDICIARY

PETER W. RODINO, Jr., New Jersey, Chairman

JACK BROOKS, Texas HAMILTON FISH, Jr., New York

ROBERT W. KASTENMEIER, Wisconsin CARLOS J. MOORHEAD, California

DON EDWARDS, California HENRY J. HYDE, Illinois

JOHN CONYERS, Jr., Michigan THOMAS N. KINDNESS, Ohio

JOHN F. SEIBERLING, Ohio HAROLD S. SAWYER, Michigan -»-

ROMANO L. MAZZOLI, Kentucky DAN LUNGREN, California -J

WILLLVM J. HUGHES, New Jersey F. JAMES SENSENBRENNER, Jr., <

SAM B. HALL, Jr., Texas Wisconsin p,

MIKE SYNAR, Oklahoma BILL McCOLLUM, Florida

PATRICIA SCHROEDER, Colorado E. CLAY SHAW, Jr., Florida

DAN GLICKMAN, Kansas GEORGE W. GEKAS, Pennsylvania -i::

BARNEY FRANK, Massachusetts MICHAEL DeWINE, Ohio _r>

GEO. W. CROCKETT, Jr., Michigan \n

CHARLES E. SCHUMER, New York

BRUCE A. MORRISON, Connecticut

EDWARD F. FEIGHAN, Ohio

LAWRENCE J. SMITH, Florida

HOWARD L. BERMAN, California

FREDERICK C. BOUCHER, Virginia

Alan A. Parker, General Counsel

Garner J. Cune, Staff Director

Alan F. Goffey, Jr., Associate Counsel



Subcommittee on Criminal Justice

JOHN CONYERS, Jr., Michigan, Chairman
DON EDWARDS, California GEORGE W. GEKAS, Pennsylvania

JOHN F. SEIBERLING, Ohio BILL McCOLLUM, Florida

HOWARD L. BERMAN, California MICHAEL DeWINE, Ohio

FREDERICK C. BOUCHER, Virginia

Thomas W. Hutchison, Counsel

Michael E. Ward, Assistant Counsel

Gail E. Bowman, Assistant Counsel

Barbara Kammerman, Assistant Counsel

Raymond V. Smietanka, Assistant Counsel

Bennie B. Wiluams, Clerk

Anne I. West, Clerk
Cheryl D. Reynolds, Clerk

(II)



CONTENTS



HEARINGS

Page

March 16, 1983 1

March 17, 1983 237

April 21, 1983 295

May 12, 1983 493

May 17, 1983 557

WITNESSES

Appelbaum, Dr. Paul, American Psychiatric Association 108

Bayh, Hon. Birch, a former U.S. Senator from Indiana, on behalf of the
National Commission on the Insanity Defense of the National Mental

Health Association 77

Prepared statement 90

Chandler, Hon. Rod, a Representative in Congress from the State of Washing-
ton 566

Prepared statement 569

Ennis, Bruce J., Esq., on behalf of the Association for the Advancement of

Psychology and the American Psychological Association 537

Prepared statement 542

Gerard, Jules B., professor, Washington University School of Law 438

Prepared statement 446

Golding, Stephen, professor of psychology. University of Illinois 403

Prepared statement 416

Herman, Susan, associate professor, Brooklyn Law School, on behalf of the

American Civil Liberties Union 515

Prepared statement 521

Hodson, Maj. Gen. Kenneth J. (retired), vice-chairperson, Standing Committee

on Association Standards for Criminal Justice, American Bar Association 2

Prepared statement 10

Jensen, D. Lowell, Assistant Attorney General, Criminal Division, Depart-
ment of Justice 237

Prepared statement 254

Kamenar, Paul, Esq., director of litigation, the Washington Legal Foundation. 493

Prepared statement 502

Lynch, Richard, American Bar Association 2

Maynard, John, assistant attorney general, State of Montana 261

Prepared statement 268

Morse, Stephen J., professor of law and professor of psychiatry and the
behavioral sciences. University of Southern California, on behalf of the
Association for the Advancement of Psychology and the American Psycho-
logical Association 296

Prepared statement 311

Newstadt, Howard, Esq., member, Pennsylvania Bar 271

Prepared statement 279

Roth, Dr. Loren, on behalf of the American Psychiatric Association 108

Letter from, dated April 1, 1983, to Hon. John Conyers, Jr 230

Sabshin, Dr. Melvin, on behalf of the American Psychiatric Association 108

Prepared statement 132

Sensenbrenner, Hon. F. James, Jr., a Representative in Congress from the

State of Wisconsin 557

Prepared statement 564

Zonana, Dr. Howard, American Psychiatric Association 108

(III)



IV

ADDITIONAL MATERIAL

American Bar Association, Standing Committee on Association Standards for

Criminal Justice, proposed first tentative draft, black letter ABA criminal Page
justice mental health standards 37

American Civil Liberties Union:

Letter from, dated October 6, 1983, to Hon. John Conyers 720

Letter from, dated October 28, 1983, to Hon. John Conyers 721

Letter from, dated October 31, 1983, to members of the House Committee
on the Judiciary 723

Coughlin, Hon. Lawrence, a Representative in Congress from the State of
Pennsylvania, prepared statement 552

Crystal, Daniel, chairperson, New Jersey Coalition To Defend the Bill of
Rights, prepared statement 571

George, B. James, Jr., chairperson. Standing Committee on Association Stand-
ards for Criminal Justice, American Bar Association, letter dated February
17, 1983, to Dr. Melvin Sabshin 135

Missouri State Senate bill No. 292, 82d general assembly 452

National Alliance for the Mentally 111, memorandum to members of the
House Committee on the Judiciary, October 31, 1983 727

National Mental Health Association, letter dated October 28, 1983, to Hon.
Peter W. Rodino 729

"Sex-Case Millionaire Goes Free" (article), Seattle, Wash., Post-Intelligencer,
March 17, 1983, by Steve Miletich 513



REFORM OF THE FEDERAL INSANITY DEFENSE



WEDNESDAY, MARCH 16, 1983

House of Representatives,
Subcommittee on Criminal Justice
OF the Committee on the Judiciary,

Washington, D.C.

The subcommittee met, pursuant to call, at 10 a.m., in room
2226, Rayburn House Office Building, Hon. John Conyers, Jr.
(chairman of the subcommittee) presiding.

Present: Representatives Conyers, Berman, Gekas, and DeWine.

Staff present: Thomas W. Hutchison, counsel; Michael E. Ward
and Barbara Kammerman, assistant counsel; and Raymond V.
Smietanka, associate counsel.

Mr. Conyers. The subcommittee will come to order. Good morn-
ing, ladies and gentlemen.

Once again, we take up the insanity defense, exploring its proper
scope and definition. Currently, Federal law uses the test recom-
mended by the American Law Institute — a defendant is not guilty
because of a mental disease or defect if he or she lacks substantial
capacity either to appreciate the wrongfulness of his or her conduct
or to conform that conduct to the requirements of the law.

Second, we examine the question of proof. The prosecution pres-
ently must prove the defendant's sanity beyond a reasonable doubt.
This is quite an onerous burden.

Third, the scope of psychiatric testimony will be looked into. H.R.
1280 would restrict such testimony, and several of our witnesses
will address that matter. Finally, we will explore commitment pro-
cedures. Under present Federal law, persons found not guilty on in-
sanity grounds are discharged from Federal custody. H.R. 1280 es-
tablishes procedures for the commitment of persons found not
guilty by reason of insanity.

Our first witness is Maj. Gen. Kenneth J. Hodson, accompanied
by Richard Lynch, Esq.

General Hodson is the vice chairperson of the American Bar As-
sociation's Standing Committee on Association Standards for
Criminal Justice, and former Judge Advocate General of the U.S.
Army. He has a very distinguished background.

Mr. Lynch is well known to me and the subcommittee and is di-
rector of the criminal justice mental health standards project of
the American Bar Association.

We welcome you both, and will incorporate your prepared state-
ment into the record. I would observe that this subcommittee has
worked on this quite a bit, as has the Senate Judiciary Committee.
I was at the White House a couple of days ago, and the Attorney

(1)



General, and the Senators, Congressmen, and White House people
present all agreed on the need for action on the insanity defense.
You may proceed.

TESTIMONY OF KENNETH J. HODSON (MAJ. GEN. U.S. ARMY— RE-
TIRED), VICE-CHAIRPERSON OF THE AMERICAN BAR ASSOCI-
ATION'S STANDING COMMITTEE ON ASSOCIATION STANDARDS
FOR CRIMINAL JUSTICE, ACCOMPANIED BY RICHARD LYNCH,
ON BEHALF OF THE AMERICAN BAR ASSOCIATION

General Hodson. Thank you, Mr. Chairman. It is a pleasure for
me and Mr. Lynch to be given the opportunity to appear before
you. I have a 16-page statement with an appendix which I assume
will be incorporated in the record.

Mr. CoNYERS. Without objection, it will.

General Hodson. I know that the committee members are busy,
and I will try to summarize that statement very briefly and then
open myself to questions, if that would be suitable to you.

Mr. CoNYERS. Thank you, sir.

General Hodson. As you pointed out, I am a retired major gener-
al, and I should indicate that I served as Judge Advocate General
and later as chief judge of the U.S. Army Court of Military Review.

Before commenting directly or specifically on your bills, I would
like to review three policies that were adopted by the American
Bar Association house of delegates on February 9, 1983. I think
these three policies hit right at the heart of the problem that is
being considered by the committee.

I will cover them very briefly, and as I say, if you have questions,
I will try to answer them.

The first policy is that the American Bar Association approves,
in principle, a defense of nonresponsibility for crime which focuses
solely on whether a defendant, as a result of mental disease or
defect, was unable to appreciate the wrongfulness of his or her con-
duct at the time of the offense charged.

You will note that we have struck out the second leg of the ALI
test, the volitional test. We have done that in order to simplify the
defense of insanity and because psychiatrists, as well as lawyers,
seem to agree that most of the problems arising in an insanity de-
fense trial, arise from the volitional prong. It is difficult to define
and it is also difficult for psychiatrists and juries to determine
whether the accused was unable to adhere to the right or whether
he was unwilling to adhere to the right.

Thus, we think that the volitional prong of the test should be
eliminated.

The second policy adopted by the ABA House of Delegates in Feb-
ruary relates to the burden of proof, which you have mentioned,
Mr. Chairman, in your opening statement. The ABA policy is that
in jurisdictions utilizing any test for insanity which focuses solely
on whether the defendant, as a result of mental disease or defect,
was unable to know, understand, or appreciate the wrongfulness of
his or her conduct at the time of the offense charged, the prosecu-
tion should have the burden of disproving the defendant's claim of
insanity beyond a reasonable doubt.



Second, in jurisdictions using the ALI Model Penal Code test,
which has the two prongs, the cognitive prong and the volitional
prong, the defendant should have the burden of proving by a pre-
ponderance of the evidence his or her claim of insanity.

The third policy adopted in February 1983 by the ABA house of
delegates opposes the enactment of any statute which would sup-
plant or supplement the verdict of not guilty by reason of insanity
with an alternative verdict of guilty but mentally ill.

Now, I would like to comment briefly on the bills which are
being considered by this committee, and apply the above three poli-
cies to those bills.

Mr. CoNYERS. We could save some time by just considering Mr.
Gekas' and Mr. Conyers' bills. That would help things incredibly.

General Hodson. I believe I can do it in a very summary order, if
you will, because our three policies hit at all of the bills in one
aspect or another.

Mr. Conyers. All right.

General Hodson. First, with respect to H.R. 1280, 1329, and
1257—1329, of course, is Mr. Gekas' bill— the ABA would agree
generally to limiting the defense of insanity to the question of
whether the defendant appreciated the wrongfulness of his con-
duct. We prefer our language of "appreciate the wrongfulness,"
rather than the somewhat different wording used in these three
bills.

We disagree with shifting the burden of proof to the defendant to
show insanity by a preponderance or by a clear and convincing pre-
ponderance, of the evidence. The latter test we find in Mr. Gekas'
bill. We particularly object to Mr. Gekas' wording because he is
combining two standards of proof in one standard.

Second, we disagree with shifting the burden of proof to the de-
fendant on the issue of whether he was unable to appreciate the
wrongfulness of his conduct. We think that test is simple and objec-
tive and that the prosecution should have to prove sanity beyond a
reasonable doubt.

With respect to H.R. 47, which is Congressman Bennett's bill, we
disagree with the abolition of the insanity defense and the substitu-
tion of the mens rea standard.

We disagree with the verdict of guilty but mentally ill, or guilty
but insane, which is found in H.R. 1257 and 682.

Now I can summarize the reason for these policies if you wish. I
have already pointed out briefly why we prefer not to shift the
burden of proof to the defense once we have simplified the defense
on insanity by taking out the volitional prong. We disagree with
the abolition of the insanity defense and substitution of the mens
rea standard because that would permit an accused who has lost
his sense of reality and is insane by almost any definition, to be
convicted. Our belief right from the beginning, and it continues to
be the belief of our committee and our task forces, is that only the
blameworthy should be found guilty.

If a man has lost his sense of reality and thus is unable to appre-
ciate the wrongfulness of his act, we feel that he should be acquit-
ted.

We also object to adding the verdict of guilty but mentally ill.
Guilty but mentally ill is a verdict that does not tell anybody any-



thing. In other words, it does not say whether the accused was
insane or not insane. If he was insane, he should have been found
not guilty.

Mentally ill is one of these vague terms that has a lot of mean-
ings to a lot of different people, and all of them are different.

Now, with respect to the verdict of guilty but insane, we have
the feeling that that is probably unconstitutional. It has been our
law for years and years, hundreds of years, that an insane person
is not blamev/orthy, and therefore cannot be convicted. I don't
think we should try to change that concept.

That is my reasoning with respect to the bills which are pending.
In other words, we agree generally with taking out that volitional
prong, which I think all the bills have, but we disagree with shift-
ing the burden of proof to the defense if we have only the one
prong left.

We disagree very strongly with adding the verdict of guilty but
mentally ill, or guilty but insane.

We also do not like to limit insanity to the mens rea doctrine.

Now, in going through our files, I found several other policies of
the American Bar Association that were adopted in 1979 at the
time the ABA was called upon to comment on the then-pending
Federal Criminal Code revision.

Those policies are found on pages 12 and 13 of my statement.
They are not included within the three policies I discussed. You
may have questions about them; if you do, I will attempt to answer
them.

I tried to summarize for you existing ABA association policy re-
garding insanity defense issues, including the three recently en-
acted ABA policies focusing on the substantive test for insanity,
the burden of proof in insanity defense cases, and the verdict of
guilty but mentally ill.

Those policies, and the issues they address, are important ones.
Still, I would like to point out to the committee, there are many
other extremely important mental health issues which arise with
great frequency in the administration of criminal law. Some of
these issues relate directly to the insanity defense and its adminis-
tration.

Others deal with issues of competence to stand trial, treatment
of mentally disabled prisoners, and important factors regarding the
roles and function of mental health professionals in the criminal
process.

As my statement indicates, for the past 3 years, we have been
engaged in a project, with funding from the John D. and Catherine
T. Mac Arthur Foundation, to look into the problem of the mentally
ill in the criminal process.

Our task force and committee uses the volunteer services of 79
highly qualified psychiatrists, psychologists, other mental health
professionals, prosecutors, defense attorneys, judges, and legal
academicians.

This project, to the best of my knowledge, is the -first interdisci-
plinary effort to examine exhaustively the problem of mental
health and the criminal law. The project is comprehensive and
deals with all mental health issues which arise in the administra-



tion of criminal justice, including the six policies adopted by the
American Bar Association in 1979.

I might say that we are already feeling that some of those 1979
policies are no longer valid. We are looking into the following
major areas: mental health and the administration of criminal jus-
tice; professional roles and responsibilities of psychiatrists, lawyers,
psychologists and so forth; the police role; intervention on behalf of
the mentally disabled and custodial treatment of pretrial detainees;
pretrial mental evaluation and expert testimony by mental health
experts; competence to stand trial; competence at other procedural
stages; nonresponsibility for crimes; civil commitment of insanity
acquittees; special dispositional statutes; sentencing and placement
of mentally disabled offenders; and treatment of mentally disabled
offenders.

I can further advise you and your committee that this project
which is being operated by the ABA's Standing Committee on Asso-
ciation Standards for Criminal Justice, is sensitive to the fact that
our Federal system does not currently provide for the possibility of
civil commitment of a person found not guilty by reason of insan-
ity; this issue is being examined by our task force on civil commit-
ment of insanity acquittees. In April 1982, the criminal justice
criminal health standards project published the ABA provisional
criminal justice mental health standards. Those standards have
been widely circulated within and without the American Bar Asso-
ciation.

Based upon comments and suggestions received, the project task
forces have made substantial revision to those standards. In the
late spring of this year, we will be publishing a first, tentative
draft of the criminal justice mental health standard for distribu-
tion on an informal basis to the ABA's House of Delegates.

It is our current expectation that these voluminous standards,
covering all aspects of mental health issues in criminal law will be
submitted for formal ABA House of Delegates' action at the associ-
ation's August 8, 1984, annual meeting.

I have here with me this morning, Mr. Chairman, what we call a
"black letter draft." That draft contains the policies that we may
be ultimately asking the American Bar Association to adopt in
1984. It is taken from our first tentative draft.

If the committee feels that it would be of any assistance to the
committee and its staff, we would be happy to make it available.

Mr. CoNYERS. We would be delighted to receive that.

General Hodson. As you will note, this "black letter" draft con-
tains no commentaries, it contains only the statement of the princi-
ples.

Mr. CoNYERS. Thank you very much.

[The material submitted may be found starting on p. 37.]

Mr. CoNYERS. Did you want to make a concluding remark?

General Hodson. I wanted to point out in conclusion that we are
very happy, in the American Bar Association, that our policies and
the study we have conducted have had the vigorous support of the
American Psychiatric Association, whose representatives will all be
here this morning. We think it is significant that the legal profes-
sion and the psychiatric profession are in general agreement on
many of these points.



Too often, lawyers sit down in a closed room and decide what is
the best system of criminal justice without considering other disci-
plines that have so much to contribute to the ultimate success of
the system.

I close by thanking you very much for allowing me to appear and
I would be happy to answer any questions you may have.

Mr. CoNYERS. I thank you very much, General Hodson.

Mr. Lynch, did you want to add anything?

Mr. Lynch. Well, Mr. Chairman, I think General Hodson covered
the ABA policy. Thank you.

Mr. CoNYERS. The only thing I want to ask you is this. I just read
in some piece of literature that there are a lot of people incarcerat-
ed who are clearly mentally ill. They need medical help.

Are any of your projects addressing that rather scandalous prob-
lem?

General Hodson. Yes; our project on sentencing and placement
of mentally disabled offenders approaches that, recognizing the fact
that in many jurisdictions, they are short of cash, they are short of
experts, and they are short of mental health facilities; we find that
to be fairly true throughout the United States.

But we are trying to find a workable solution; one task force has
attempted to lay down guidelines for the person in the prison who
is discovered to be mentally ill and in need of mental health treat-
ment, for his transfer to a mental health facility and his transfer
back to the prison in the event he recovers. It is a very difficult
problem.

Mr. CoNYERS. It is a dollars-and-cents kind of problem, but I
think it should be embarrassing to our sense of justice that we
have clearly ill people being shunted through the criminal justice
process, people whose biggest problem probably is that they need
some serious medical, and probably psychiatric, attention.

I think that is something we will all be looking at carefully. I am
glad you are on it.

General Hodson. One thing that was pointed out to us by our ex-
perts in the other disciplines was that the prisoner who shows
these signs is transferred to the mental health facility and there he
receives treatment. He seems to recover and he goes back to the
prison, and shortly thereafter, he develops the same symptoms all
oyer again. It is kind of a yo-yo operation in that it depends on the
kind of facilities that are available, both for confinement and for
treatment.

Mr. CoNYERS. I will tell you one thing. Building more and more
prisons, as if we do not know they are all going to fill up in 2 years,
is not one of the most brilliant solutions that I have heard.

Mr. Lynch. Mr. Chairman, I might add that in discussions re-
garding the ABA policy opposing the enactment of guilty but men-
tally ill verdicts, the judgment of the ABA Standing Committee on
Association Standards for Criminal Justice and of our mental
health project task forces was that during the sentencing phase of
a criminal proceeding tribunals currently have power to order, as
part of a presentence report, a psychiatric workup. In addition,
these ABA entities felt that it should be obligatory on State correc-
tional systems to see to it that offenders who do have substantial
mental health problems should receive treatment. If not for the



sake of the offender, then for society's self-protection, our project
task forces have paid particular attention in drafting provisional
standards to the issue of transferring prisoners to mental health
facilities and in stressing the need for adequate mental health
treatment for convicts. As General Hodson has explained, these
and other related issues will be considered by the ABA's house of
delegates in August 1984. Current ABA policy set forth in our
standards on the legal status of prisoners, does however address
the rights of prisoners to medical and mental health treatment.

Mr. CoNYERS. Thank you.

Mr. Gekas.

Mr. Gekas. Mr. Chairman, thank you, I really appreciate the
statement that was presented by the General and I ask you to re-



Online LibraryUnited States. Congress. House. Committee on the JReform of the federal insanity defense : hearings before the Subcommittee on Criminal Justice of the Committee on the Judiciary, House of Representatives, Ninety-eighth Congress, first session, on reform of the federal insanity defense, March 16 and 17, April 21, and May 12 and 17, 1983 → online text (page 1 of 76)