Editor's note: The following article has been excerpted from a Report to the Executive Committee of the New York State Bar Association on the Use and Efficacy of Penal Law § 40.15 and Criminal Procedure Law § 330.20. The full report can be accessed at www.nysba.org/mandatedrep0419.
The report was approved by the Executive Committee at the April 12, 2019 meeting.
Thousands of individuals with mental illnesses are incarcerated in New York's prisons and jails. At the same time, the so-called "insanity defense" is so rarely invoked that it is arguably moribund. In order to examine why a defense that could lead to treatment instead of incarceration is so rarely invoked, NYSBA's Committee on Mandated Representation, under Chair Robert Dean, and Former Chair Andrew Kosover, and the Mental Health Subcommittee, traced the origins of the insanity defense, its history in New York, the effects of past reforms, and the post-acquittal commitment scheme.
The Subcommittee concluded that both the narrowness of the defense and the indefinite confinement that can follow an insanity acquittal likely restrict its utility. Although the insanity defense has often been portrayed as allowing guilty people to escape punishment, the reality is that even individuals acting under severe, pervasive delusions may still be convicted. As Charles P. Ewing, SUNY distinguished professor at the University of Buffalo Law School, warns, "You have to be crazy to plead insanity . . . and I say that because the consequences are so grave."
M'Naghten's Legacy in New York
New York's "insanity defense" has its roots in ancient common law.1 As in nearly every state, New York's statutory provisions applicable to criminal defendants who lack criminal culpability due to a mental illness stem directly from the English common law M'Naghten's Case. In that case, a woodturner who suffered from delusions of political persecution was acquitted of the murder of a civil servant and committed to a mental institution.2 In 1843, following public outcry at the acquittal and inquiry from the House of Lords, the Court of Common Pleas announced the rule that criminal liability could be excused only if the accused "clearly proved that, at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong."3
When the rule was imported to New York, the courts placed on the prosecution the burden of proving beyond a reasonable doubt that the defendant was not insane.4 The difficulty of carrying this burden was eased by a presumption of sanity that required the defendant to introduce substantial evidence of his insanity.5 By 1964, the harshness of New York's strict adherence to M'Naghten led to legislative reform.6 The legislature enacted Penal Law § 30.05,7 which provided: "A person is not criminally responsible for his conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to know or appreciate either: (a) The nature and consequences of such conduct; or (b) That such conduct was wrong." The revision ameliorated the strict M'Naghten rule in that a defendant's lack of capacity to know or appreciate was not required to be total, but substantial.8 It also changed "nature and quality" to "nature and consequences." The legislature declined, however, to accept in full the recommendation of the Temporary Commission on Revision of the Penal Law and Criminal Code, which followed the Model Penal Code in providing that the defense applies to one who, due to a mental disease or defect, lacked substantial capacity "to conform his conduct to the requirements of law."9
By 1970, the Court of Appeals had restricted the defense by approving of a jury instruction that explained that to be held criminally responsible, "the defendant must have realized that the act was against the law and against the commonly accepted standards of morality."10 Thus, regardless of how pervasive a delusion, so long as a defendant understood that conduct was illegal and generally considered immoral, the insanity defense would fail as a matter of law.11
In 1984, following the attempted assassination of Ronald Reagan and the public furor at his would-be assassin John Hinckley's insanity acquittal,12 the federal government and multiple states, including New York, tightened insanity statutes.13 The New York legislature repealed Penal Law § 30.05 and replaced it with Penal Law § 40.15,14 thereby shifting the burden to the defendant, making insanity an affirmative defense to be proved by a preponderance of the evidence. The statements of agencies and stakeholders contained within the bill jacket for Penal Law § 40.15 overwhelmingly supported the change.15 Most echoed the arguments offered by the Governor's statement in support: that insanity acquittals had risen in the decade prior and that placement of the burden of disproving insanity on the prosecution favored the defendant too heavily, thus creating a risk that defendants would "get away with murder."
The statute has not been amended since 1984 and Kohl remains good law. Two cases, one from 1994 and one from 2018, illustrate the insanity defense's continued narrowness in practice.
In 1994, brandishing a rifle, Ralph Tortorici took a classroom full of University of Albany students hostage. "He claimed that he was the victim of an experiment in which a microchip was implanted in his brain, and [he] wanted to expose the people responsible for victimizing him."16 One of the student hostages, Jason McEnaney, charged Tortorici and managed to wrestle the rifle away from him, allowing other students to pin him to the ground. During the struggle, Tortorici shot and wounded McEnaney.17 Tortorici was indicted on 15 counts, including attempted murder, kidnapping, and first-degree assault.
Once the trial began, Tortorici declined to attend, instead remaining in his holding cell.18 The People did not present any psychiatric evidence, while the defense presented four psychiatric experts, all of whom agreed that Tortorici did not understand the nature and consequences of his conduct.19 The jury, deliberating for an hour, convicted Tortorici of multiple felonies, including kidnapping and assault, but acquitted him of attempted murder. The court sentenced Tortorici to an aggregate term of 15½ to 40 years' imprisonment.20 The Appellate Division and Court of Appeals affirmed the verdict.21 Despite receiving Office of Mental Health services while in custody, Tortorici hanged himself in his cell in 1999.22
A juror explained why they had rejected Tortorici's insanity defense: "if he had just grabbed a gun and run into a McDonald's, it would have been a different situation. We would have looked at it differently. The fact that [there] was so much planning weighed heavily on us."23 The juror's interpretation of the insanity defense is consonant with the Pattern Jury Instructions for Penal Law § 40.15, which describe a lack of substantial capacity to know the nature and consequences of an act or that it was wrong in terms of children who "sometimes recite things that they cannot understand."24 Although people with mental illnesses were once thought of as insensible wild animals or infants,25 we have long known that even where a mental illness impairs reasoning in some areas (i.e., so that a person believes that taking a college class hostage will stop the government from experimenting on him), it does not often destroy all rational thought.26
In 2013, Lakime Spratley, seemingly at random and without planning or provocation, shot a woman in a grocery store, killing her.27 The evidence at trial indicated that he suffered from schizoaffective disorder, heard voices, and suffered from delusions of persecution. In a police interview he offered as a partial explanation that he believed the victim had stolen his clothes and was wearing his shorts, and that she had made trigger gestures at him.28 A jury convicted him of murder in the second degree and criminal possession of a weapon in the second degree. The Appellate Division, Second Department, reversed the verdict, explaining that "the rational inferences which can be drawn from the evidence presented at trial do not support the conviction," finding as a matter of law that the defendant had established that he lacked substantial capacity to know or appreciate that his conduct was wrong.29 One justice dissented.
These cases highlight the narrowness of New York's ostensibly evolved M'Naghten rule. For the defense to succeed, the defendant must have been insensible to the point that the line between lack of mens rea and the insanity defense disappears. But mental illness is not all or nothing; one need not conform to the medieval notion of lunacy by howling at the moon to lack - or have diminished - criminal culpability.30
In response to an inquiry sent by the Committee on Mandated Representation's Mental Health Subcommittee to chief defenders, 18 of 19 respondents endorsed the belief that Penal Law § 40.15 is insufficient to ensure justice for criminal defendants who lack criminal culpability due to mental disease or defect. In addition, multiple respondents questioned the all-or-nothing nature of the defense, noting that culpability, ability to appreciate the nature of one's conduct, and the ability to tell right from wrong are more appropriately viewed as matters of degree. Unfortunately, while societal and medical understanding of mental illness has evolved, the insanity defense has stood still.
The Insanity Defense in Practice
The comments in support of the enactment of Penal Law § 40.15 in 1984 would suggest that the insanity defense was being routinely abused.31 In the eyes of the public and legislators, it presented an unacceptable opportunity for murderers to walk free by faking a mental illness. Attorneys and the public alike "believe that the defense is invoked frequently and principally in cases involving murder."32 Yet social science research suggests that the insanity defense may only be invoked in one percent of felony cases, and that, when invoked, it is rarely successful.33 While research varies widely, some studies conclude that the defense succeeds in only one out of four cases, while others have found a success rate as low as one in 1,000.34 New York State does not track how often the defense is invoked, but the Department of Criminal Justice Statistics reports that over the five-year period from 2013-2017, only 11 defendants, out of 19,041 felony and misdemeanor trials statewide, were found not responsible by reason of mental disease or defect after a trial. During the same five-year period, 241 defendants entered a plea of not responsible, compared to 1,375,096 convictions for felonies and misdemeanors.35 According to the Office of Mental Health, as of June 30, 2018, 260 insanity acquittees were in secure confinement and 452 were in the community subject to orders of conditions. Meanwhile, as of 2016, approximately 20 percent of sentence-serving inmates in New York State correctional facilities carried mental health diagnoses that required Office of Mental Health services.36 In other words, based on a reported total prison population of 51,000, over 10,000 inmates receive services from Office of Mental Health.37
The insanity defense's low usage rates paired with the high incidence of mental illness in prisons raises a question: why are more defendants not invoking a defense that would send them to treatment instead of prison? First, the overall low success rate may deter defendants from interposing the defense. Second, defendants pay a penalty for arguing insanity and losing.38 Defendants whose insanity defenses are unsuccessful - which, as noted above, represents the vast majority of those who raise it at trial - receive significantly longer sentences than those who are convicted without having argued insanity.39 Third, defendants may be unwilling to assert the defense because they decline to accept a mental illness diagnosis. Fourth, as discussed in the next section, New York's civil commitment system may itself deter defendants with viable insanity defenses from raising them. For example, defendants acquitted based on insanity may remain confined for longer than the maximum term of the prison sentence they would have served if convicted.40 Thus, Professor Ewing's warning on grave consequences.41
Get Out of Jail Free? Criminal Procedure Law § 330.20
Whether the insanity defense should be reformed cannot be considered absent an examination of what happens to an individual after an insanity acquittal. The retention, care, treatment, and release of persons found not responsible of crimes after successfully invoking the insanity defense is a complex process involving the balancing of individual liberties and the protection of society.42 In New York, the current procedures that follow a verdict or plea of not guilty by reason of mental disease or defect were enacted in 198043 following a study by the New York State Law Revision Committee and to comply with the constitutional mandates of In re Torsney.44
In In re Torsney, the Court of Appeals held that, because insanity acquittees lack criminal culpability, "[b]eyond automatic commitment . . . for a reasonable period to determine [acquittees'] present sanity, justification for distinctions in treatment between persons involuntarily committed under the Mental Hygiene Law and persons committed under CPL § 330.20 draws impermissibly thin."45 Nevertheless, due to a judicially imposed presumption that the defendant acquitted by reason of mental disease or defect is perpetually dangerous, in practice the CPL § 330.20 commitment scheme has become "increasingly onerous, bearing little resemblance to [Mental Hygiene Law] article 9 (civil) commitments."46
Stages of the Proceeding
"Track status, as determined by the initial commitment order, governs the acquittee's level of supervision in future proceedings and may be overturned only on appeal from that order, not by means of a rehearing and review."47 Following an insanity verdict or plea, the trial judge must immediately order a psychiatric examination of the defendant, to be followed by an initial hearing to determine the acquittee's mental condition.48 This hearing, in which the district attorney continues to participate, determines the level of judicial and prosecutorial involvement in future decisions concerning the acquittee's confinement, transfer and release.49 Based on its findings at the initial hearing the court then assigns the acquittee to one of the three "tracks."50 Track-one acquittees are those found by the trial judge to suffer from a dangerous mental disorder that makes them "a physical danger to [themselves] or others."51 Track-two acquittees are mentally ill, but not dangerous,52 while track-three acquittees are neither dangerous nor mentally ill.53
The most onerous aspect of the statutory scheme is the "recommitment" process, which is used to return outpatient acquittees to inpatient status in the event of psychiatric decompensation. As interpreted by the Court of Appeals, an acquittee on conditional release can be committed to secure confinement under the Criminal Procedure Law without the enhanced procedural due process protections afforded to people subject to civil hospitalization under section 9 of the Mental Hygiene Law even if at the initial hearing the defendant was found not dangerous and placed in track two or three.54 In other words, a defendant who was not committed to begin with can nevertheless be "recommitted" under CPL § 330.20. Appellate courts in New York have been completely unpersuaded that the initial findings of a criminal court placing defendants in one of the three available "tracks" have any constitutional significance."55 All such persons have committed criminal acts, and this underlies the permissible distinction between them and all others."56 Federal constitutional challenges to the New York statutory scheme have to date failed, albeit narrowly.57
In 1995, in In re George L.,58 the Court of Appeals determined that section 330.20 does not constrain a court to determining dangerousness as of the time when the hearing is conducted.59 Instead, the Court held that the State was permitted to engage in a presumption that the causative mental illness continues beyond the date of the criminal conduct.60 Stated another way, George L. adopted a presumption that the mental illness that led to the criminal act continues after the plea or verdict of not responsible and that assessments of dangerousness should not be limited to a point in time, but rather should be contextual and prospective in nature.61 Further, the presumption of dangerousness continues, in fact, and is not extinguished by a subsequent finding that the defendant no longer suffers from a dangerous mental disorder.62
Length of Stay
In addition to the judicial interpretations of CPL § 330.20 discussed above, Office of Mental Health policy has led to an increase in length of stay for confined acquittees. Over time, OMH has become "increasingly risk averse."63 Lengths of stay have become longer for people committed under the CPL despite the fact that the length of hospitalization has little or no effect on re-arrest.64
Unlike in other states, the maximum term to which an acquittee could have been sentenced does not limit the time that an acquittee may be confined at a secure forensic facility or subject to an order of conditions. In other words, a defendant whose maximum sentence would have been five years can be confined and/or subject to an order of conditions for the rest of his life. As aptly noted by one commentator, if one asks the question what happens after a defendant successfully invokes the insanity defense, "often the answer is involuntary confinement in a state psychiatric hospital - with no end in sight."65
In sum, once a defendant has been acquitted based on insanity and thereby adjudged to lack criminal culpability, she faces indefinite detention that can exceed the maximum time for which she could have been imprisoned. She enters an increasingly risk averse milieu that has enforced an increasing length of confinement despite falling admissions.66
Penal Law § 40.15 and the post-acquittal commitment scheme under Criminal Procedure Law § 330.20 deserve close examination with an eye toward reform. At the very least, legislation should be passed limiting the time a person found not guilty by reason of mental disease or defect can be confined to the maximum term for which they could have been incarcerated had they been convicted.
Of course, reform of the insanity defense is not the only way to address the issue of mental illness in prisons and jails. For instance, mental health courts have shown promise in diverting defendants with mental health issues to treatment.67 But only 27 such problem-solving courts operate in New York, and they are inconsistent in their diagnostic techniques and in matching the intensity of the intervention to the intensity of the risk.68
Nor is New York's restrictive approach to post-acquittal confinement the only model for insanity acquittees. In Tennessee, for example, 45 percent of insanity acquittees are never civilly committed; instead they are treated on an outpatient basis, and the average length of confinement is two years.69 Its recidivism rates have not changed since it changed its approach to insanity acquittees.70 Its Whatever the avenue or avenues of reform, the issue of mental illness in the jail and prison population demands attention.