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Megan Erickson
Nathan Cole
English 2010
8 April 2016
Position Paper
The Elusive Criminal Insanity Defense
We have all heard of the criminal insanity plea, or defense. Popular movies and T.V.
shows make it seem like the insanity defense is used in every major trial, but in actuality, it is
not. Only one percent of felony cases use the insanity plea as a possible defense, and of that one
percent, only a small fraction are successful. The public generally doesnt buy into the insanity
defense, even in cases where it may be true, because of the possible misuse of the defense. The
real issue with the insanity defense isnt the defense itself, its the lack of uniformity that states
have when dealing with the insanity defense.
What is criminal insanity?
A criminal defendant who is found to have been legally insane when he or she
committed a crime may be found not guilty by reason of insanity. In some cases, the defendant
may be found guilty but sentenced to a less severe punishment due to a mental impairment. In
states that allow the insanity defense, defendants must prove to the court that they did not
understand what they were doing; failed to know right from wrong; acted on an uncontrollable
impulse or some variety of these factors.1
So, generally speaking, in order to be considered criminally insane, the criminal must
prove to the court that they did not know right from wrong at the time of the crime. However,

1 Insanity Defense: http://criminal.findlaw.com/criminal-procedure/insanity-defense.html

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this definition of what criminal insanity is differs from state to state. In fact, only 46 of the U.S.
states and territories even have the insanity test.
Why does this definition differ?
Some states don't even have the insanity defense. Montana was the first state to do away
with it completely. Four other states followed suit and abolished the defense: Utah, Kansas,
Idaho and Nevada. However, Nevadas Supreme Court later ruled the absence of the insanity
defense unconstitutional. To say states differ on the insanity defense is an understatement.2
It may seem strange that a medical-sounding determination like insanity has different
definitions from state to state. After all, isn't medicine a science? Like astronomy and biology?
The law of gravity and the speed limit of light don't vary from state to state. Should our legal
definition and recognition of illness and brain function vary from state to state? Arthritis,
psoriasis and a sprained ankle are the same in Mississippi as they are in Oregon.3
However, not only are states free to develop law in the field of legal insanity, but under
the Constitution, they are encouraged to do so. Of course, Brandeis was quick to add that the
court has "the power to prevent an experiment. We may strike down the statute which embodies
it on the ground that, in our opinion, the measure is arbitrary, capricious, or unreasonable."
How is insanity determined?
Today, courts use several tests, to determine if someone is, or was, criminally insane at
the time they committed the crime. Most widely used is the M'Naghten Rule, and most states
courts base their tests off of this rule.

2 Dont rely on insanity defense: http://www.cnn.com/2015/02/11/opinion/cevallos-insanity-defense/

3 Same as above

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Under the M'Naghten rule, a criminal defendant is not guilty by reason of insanity if, at
the time of the alleged criminal act, the defendant was so deranged that she did not know the
nature or quality of her actions or, if she knew the nature and quality of her actions, but was so
deranged that she did not know that what she was doing was wrong. The aim of the M'Naghten
rule was to limit the insanity defense to cognitive insanity, a basic inability to distinguish right
from wrong. Under many current statutes,a person is legally insane if she is so deranged that she
lacks substantial capacity to appreciate the criminality of her conduct.4
Another test we use today is the irresistible impulse test. Using this test, the defendant will be
found not guilty if they can show that as a result of mental disease or defect, they could not resist
the impulse to commit the crime of which they are accused, due to an inability to control their
actions.5 The irresistible impulse test is the most simple of all the tests used to determine criminal
insanity, but because of its simplicity is not as commonly used as the MNaghten Rule, or the
Model Penal Code.
The Model Penal Code is the second most widely used test, and was for a while the most
popular. To use the model penal code in a defendant's favor, he or she must have been diagnosed
with a severe mental defect by a forensic psychologist. Or the defendant must have been unable
to, at the time the crime was committed, understand the criminality of his/her conduct, or
conform and control their conduct to fit within the limits of the law. So the defendant must have
a diagnosed mental disorder, and/or did not know right from wrong or lacked the ability to
control an impulse.
Which mental illnesses are considered to be a viable defense?

4 MNaghten Rule: http://legal-dictionary.thefreedictionary.com/M'Naghten+Rule

5 Irresisitible Impulse Test: https://www.law.cornell.edu/wex/irresistible_impulse_test

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There are several mental disorders and illnesses that could be considered in a case, and
two of the most commonly seen are schizophrenia and antisocial personality disorder. However,
this does again vary from state to state.
Antisocial personality disorder is a type of chronic mental condition in which a person's
ways of thinking, perceiving situations and relating to others are dysfunctional, and destructive.
People with antisocial personality disorder typically have no regard for right and wrong and
often disregard the rights, wishes and feelings of others. Those with antisocial personality
disorder tend to antagonize, manipulate or treat others either harshly or with callous
indifference.6 This mental disorder is often seen in sociopaths and psychopaths, as they show no
remorse or guilt.
Schizophrenia is a mental illness in which those affected interpret reality abnormally. They often
hear voices in their head, which may tell them to do things like harm themselves or others. Those
with the disease may also see things that are not there, or hear things that are not there as well.
So why is the lack of uniformity an issue?
Say you have a criminal being tried here in Utah for crimes committed, but the same
criminal is also being tried in Arizona for some crimes. In Arizona, he pleads the insanity
defense, and is granted that defense. Yet here in Utah, we do not have the criminal insanity
defense. So now what do you do when one state sentences the criminal to jail, and the other state
sentences him to an institution?
As I stated in the first paragraph, only one percent of felony cases use the insanity
defense, so the chances of the above situation happening are basically nonexistent. Especially

6 Antisocial Personality Disorder: http://www.mayoclinic.org/diseases-conditions/antisocial-personalitydisorder/basics/definition/con-20027920

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when you take into consideration that of that one percent, only a small fraction of those defenses
actually work.
Now that you know how the process of determining rather someone is criminally insane
or not works, you should be able to see that it is not an easy process. Not only do criminals have
to fit within these rules, they also have to be evaluated by forensic psychologists, and the jury
also has to see that there is enough evidence to define them as criminally insane. Very few people
each year are allowed to plead criminal insanity, and those who do are often still punished, albeit
a lesser sentence.

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Works Cited
"A Crime of Insanity." PBS. PBS, n.d. Web. 07 Apr. 2016. <http://www.pbs.org /wgbh/pages/fro
ntline/shows/crime/trial/faqs.html>.
"Antisocial Personality Disorder." Overview. N.p., 02 Apr. 2016. Web. 07 Apr. 2016. <http://ww
w.mayoclinic.org/diseases-conditions/antisocial-personalitydisorder/basics/definition/co

n-20027920>.

Cevallos, Danny. "Insanity Defense? Forget about It (Opinion)." CNN. Cable News Network,
n.d.Web. 03 Apr. 2016.
"Insanity Defense - FindLaw." Findlaw. N.p., n.d. Web. 04 Apr. 2016. <http://criminal.findlaw.
com/criminal-procedure/insanity-defense.html>.
"Irresistible Impulse Test." LII / Legal Information Institute. N.p., n.d. Web. 04 Apr. 2016.
<https://www.law.cornell.edu/wex/irresistible_impulse_test>.
"M'Naghten Rule." TheFreeDictionary.com. N.p., n.d. Web. 02 Apr. 2016. <http://legal-dictionar
y.thefreedictionary.com/M'Naghten+Rule>.