By DR. ROBERT A. deVITO Most individuals who commit crimes and are mentally ill are at least partially responsible for those crimes and therefore, should be held accountable ALTHOUGH there is, as yet, no cure for major mental illness, there are a number of effective treatments which have led to dramatic reductions in lengths of stay in psychiatric hospitals. State mental hospitals today are no longer alternatives to prisons, even though many people think they are and would like to see them used in that fashion. This has caused stresses in our present system of treating the mentally disabled person who has committed a crime. The not guilty by reason of insanity (NGRI) plea focuses on diagnosis (the presence or absence of mental illness) rather than on treatment. Psychiatric testimony is used to determine guilt or innocence rather than to elicit a treatment plan, and the right of an individual to receive treatment is not effectively met. The cornerstone of most modern psychiatric treatment intervention today is to increase a person's capacity to accept responsibility by holding him accountable for his actions. The NGRI verdict is contrary to such therapeutic aims in that it provides patients with an excuse — despite therapeutic feedback — that they are not responsible, and many continue to believe that they could not help doing what they did or that their victims "had it coming anyway." Most individuals who commit crimes and are mentally ill are at least partially responsible for those crimes and, therefore, should be held accountable. A significant portion of the criminally insane, after they have been found not guilty by reason of insanity, admit that they intended the crime in question, were cognizant of what they were doing during its commission, and were at least somewhat aware of the consequences of their behavior. Another problem with the NGRI plea is that treatment of mentally disabled persons is made more difficult. Due in part to public pressure resulting from repeat crimes involving discharged NGRI patients, the General Assembly passed P.A. 80-164 which went into effect January 1, 1978, obliging the Department of	By DONNA PEDRO The law and psychiatry ALL DEFENDANTS are presumed innocent until proven guilty and sane until proven otherwise. But the task of finding someone's guilt or innocence grows more complex when the insanity issue is raised. The problem is the nature of mental disease. The psychotic is difficult to detect because he or she can appear sane and functional most of the time. Since murder is the most common crime of the "insane" offender, determination of guilt or innocence is particularly important. Before a trial, there is one determination to be made. Is the person competent to stand trial? That test is different from the question of sanity and measures the ability of the defendant to understand the nature of the proceedings against him or to cooperate with counsel in his defense. There is no trial for those who do not pass the test, but they are not free. They are either detained in a prison or in a mental institution until they are competent to stand trial — if ever. Most states limit the period to no longer than the maximum time the defendants could be sentenced by the court. If a person is found competent to stand trial but raises the issue of insani ty, the burden of proof lies with the state to prove beyond a reasonable doubt that he or she is not insane. Or, rather, was not insane since in Illinois the insanity defense does not deal with the mental state at the time of trial but at the time the crime was allegedly committed. The model for the insanity defense in the U.S. was the M'Naghten rule established in 1843 in England. According to the M'Naghten rule, knowledge is the key factor in determining criminal responsibility. It is reasoned that a defendant is not guilty by reason of Continued on next page Send the bad ones to prison, the sick ones to the hospital and the harmless back to society — but it's not that simple	By MARY McCORMICK and DONALD PAULL 'If insanity is not to be a defense, let us say so frankly and even brutally, but let us not mock ourselves with a definition that palters with reality' Benjamin Cardozo Law and Other Essays and Addresses EFFORTS have been made in Illinois for several years to abolish or significantly modify the insanity defense. Each of the proposals has suffered from a similar defect: the proponents of the bills introduced to date have confused, in their premises, the concepts of criminal liability and psychological responsibility. The idea that insane persons should not be held criminally responsible for their offenses has existed in Anglo-American law for seven or eight centuries, at least, and existed in a rudimentary fashion as far back in time as Plato. It is, in essence, a moral issue: is it unjust to punish an insane person? So deeply rooted is the concept in our laws that the insanity plea is most likely a defense of constitutional dimension: the plea of insanity has existed in the common law for so many centuries that it has probably been subsumed under the due process clause. Definitions of morality, of course, may change, and when they do, the law must change also. Leaving aside, however, the issue of whether abolition of the insanity defense would violate the Constitution, we believe that community concepts of morality still justify the insanity defense, and do so in more or less the framework in which insanity currently is conceived in Illinois law. Notwithstanding the apparent unpopularity of the insanity defense in the community, most persons in the community would be repelled at the idea of holding a person who is patently mentally disturbed responsible for an act he or she commits. The primary community force behind most of the proposed legislation is not concern with whether a person should be found criminally liable if insane, but rather, concern with what disposition should be made in such cases. The basis for imposing criminal liability on a person is that it gives the community the right to punish a person for his or her misdeeds. The basis for securing an insane person in a custodial setting is not to punish, but to treat the person, so that he or she may return to the community and not cause other members of the

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Should the insanity defense be eliminated? Continued from page 12 Mixing dangerous or potentially dangerous patients in minimum security psychiatric units with patients who are not dangerous does not benefit either group Mental Health and Developmental Disabilities (DMHDD) to request the referring court to approve any discharge of an NGRI patient. The result has been a gradual but significant increase in the number of NGRI patients in DMHDD facilities from 45 on July 1, 1977 to 89 on March 1, 1979. Mixing dangerous or potentially dangerous NGRI patients in minimum security psychiatric units with patients who are not dangerous does not benefit either group. Mental health staff must concern themselves with security issues in relation to both groups. A paranoid psychotic rapist in the same environment with a deeply depressed young woman can be an explosive situation. The security problem also creates differential treatment (off-grounds or home passes are usually denied NGRI patients but not others) which is not overlooked by NGRI patients and can lead to behavioral regression on their part. Finally, the right of the public to be protected from dangerous mentally disabled individuals is not fully addressed. The public expects that NGRI and other dangerous patients will be "locked up" in secure institutions for long periods of time. But even with P.A. 80-164 in force in Illinois, most NGRI patients will be discharged and treated in outpatient settings too soon to suit many lay people and clinic staff. The new law is certainly an improvement but not a panacea. Whereas a NGRI patient might have had an average range of three months to two years in a DMHDD facility prior to P.A. 80-164, that range might now run from six months to three years. A solution to the problems I have addressed must include: 1) a total treatment plan for dangerous and potentially dangerous mentally disabled individuals which uses resources of both the public and private sectors; 2) an understanding that the NGRI population has different treatment needs than the general psychiatric population and therefore requires separation from the former group; 3) and the development of legislation that will foster a more creative use of both law and psychiatry to provide treatment for these individuals. Specifically, I propose the elimination of the insanity plea and the substitution of two new options: 1) culpable and mentally disabled (CMD) and 2) mentally disabled, neither culpable nor innocent (NCNI). [This proposal was amended into S.B. 61, sponsored by Sen. Roger A. Keats (R., Kenilworth), by the Senate Judiciary II Committee.] The CMD plea is similar to Michigan's guilty but mentally ill plea in that it suggests that many mentally ill individuals are at least partly responsible for the crimes they commit while actively psychotic. The CMD plea provides that such individuals if found guilty of the crime in

The law and psychiatry Continued from preceding page insanity if mental disease prevents him from understanding the nature of his act, the fact that it was harmful or the fact that it was wrong. The Irresistible impulse rule which notes that a defendant is not responsible for a criminal act if he could not stop himself from committing it, is sometimes used as an adjunct to the M'Naghten rule. Dissatisfaction with the M'Naghten rule gave rise to the Durham test which asks if the defendant was sane or insane at the time of the act and, if insane, was the act the product of the insanity (Durham v. United States, 214F.2d 862 (D.C. Cir. 1954)). As a result of the Durham test, pretrial psychological examination became popular, and the forensic psychiatrist (a specialist in both law and psychiatry) became more important. It was believed the psychiatrist could give the judge and the jury a better understanding of the degree of culpability of the defendant. Instead, the Durham test put trials into the hands of psychiatrists who often could not agree among themselves on a defendant's sanity. In 1972, David Bazelon, the judge who constructed the Durham test, admitted its failure in United States v. Browner (471 F.2d 969 (D.C. Cir. 1972). In Browner, the court substituted for the Durham rule the American Law Institute's Model Penal Code which combines elements of all three tests for insanity. The code holds that a person is not responsible for criminal conduct if at the time of such conduct, and as a result of mental disease or defect (Durham), he lacks substantial capacity either to appreciate the criminality of his conduct (M'Naghten) or to conform his conduct to the requirements of law (Irresistable impulse). At the present time, the code is used in 17 states, including Illinois. How do judges and juries react to the insanity plea? According to a state's attorney from Chicago, "a lot of judges take the attitude that if there are two psychiatrists with conflicting opinions, that automatically equals a reasonable doubt and forces them to find somebody not guilty by reason of insanity." Juries in these cases tend to rely on both common sense and emotion. When the crime is bizarre, juries are less willing to accept the insanity plea. A problem with the not guilty by reason of insanity (NGRI) verdict is that often the jury is not fully aware of what happens to defendants acquitted on this finding. In Illinois prior to January 1978, NGRI defendants were handed over to the Department of Mental Health and Developmental Disabilities (DMHDD) for admission, treatment and discharge. But elusive psychotic symptoms are hard to detect under highly controlled, clinical conditions. As a result, patients could shortly be found to be free from mental disease and released into the midst of society. The 1978 Thomas Vanda case in suburban Chicago is a startling example of the consequences of premature release. Vanda, while on probation and under psychiatric care for one killing, killed again. Pleading NGRI to the second killing, he was put into a mental institution and released in less than a year. In May 1978 he killed again. The Vanda case made headlines just after the General Assembly had passed legislation aimed at making it more difficult for such tragedies to occur. Public Act 80-164, which went into effect in January 1978, provides that during the time the NGRI patient is being treated under the direction of DMHDD, he or she is not permitted to be at large in the community. The law also requires the department to notify the court of its treatment plan for the NGRI patient and its evaluation of the patient's progress. Thomas Vanda, while on probation and under psychiatric care for one killing, killed again. Pleading insanity, he was institutionalized and released in less than a year. In May 1978, he killed again

Should the insanity defense be eliminated? Continued from page 13 The proposal to eliminate the insanity plea gives the impression it was drafted to permit DMHDD to evade its responsibility to treat the mentally disturbed in Illinois community harm in the future. The community indisputably has a right to be protected from danger to it from insane persons. If the person is to be locked up, however, efforts must be made to treat the person; if no such effort is made, there can be no purpose for locking up the person except as punishment, and it is punishment which must be precluded if no criminal liability has been imposed. Senate Bill 61, sponsored by Sen. Roger A. Keats (R., Kenilworth), incorporates the proposals of the Department of Mental Health and Developmental Disabilities (DMHDD) to modify the insanity defense. But S.B. 61 suffers from this defect of confusing criminal liability and punishment with psychological responsibility and treatment. The most notable person to confuse these issues is Dr. Robert A. deVito, former director of DMHDD. DeVito argues that to treat an individual successfully, that person must accept psychological responsibility for his or her behavior. While this is of questionable clinical validity in itself, deVito would require criminal liability to accomplish the goal of having the person accept psychological responsibility for his or her behavior. S.B. 61 gives the distinct impression that it was drafted to permit DMHDD to evade its primary responsibility as a treatment center for the psychologically disturbed in Illinois. The bill would shift the locus for treatment of mentally disturbed persons who have committed a crime to the Department of Corrections (DOC). DOC's primary responsibility as a state agency is to serve as a custodial and punishment center for those on whom criminal liability has been imposed. Since there may be only as many as 100 to 150 persons in Illinois per year who are found not guilty by reason of insanity, it would seem unlikely that the reasoning behind the legislation is entirely economic. It seems much more likely that the proposal stems from deVito's view that persons must accept their criminal responsibility before they can be treated successfully for their psychological disorders. Surely the inability of a treating psychiatrist to develop a therapy which can lead a person to accept psychological responsibility for his or her actions is no reason to enact legislation which has the practical effect of eliminating the insanity defense in Illinois. S. B. 61, as currently drafted, would enact a verdict of "culpable but mentally ill" which provides no assurance to defendants that they will ever obtain treatment for their mental disorders. If DMHDD determines immediately upon receipt of the person that he or she has received the maximum benefit of DMHDD treatment (which could happen if the facility's Utilization Review Committee determined that the person was no longer in need of mental treatment), that person would be immediately tranferred to DOC. Finding a person not guilty by reason of insanity is an emotional decision for a judge or jury to make. Faced with a verdict of Continued on page 17

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Should the insanity defense be eliminated? Continued from page 14 Two options, "culpable but mentally ill" and "mentally disabled, neither culpable nor innocent," would replace the insanity plea and offer a sense of security and flexibility not found in the present system question and sentenced in the process of a bench or jury trial, would be entitled to a mental health hearing in which mental health experts would recommend a treatment plan to the judge. The judge would then remand the individual to DMHDD for treatment. The treatment would be carried out in a medium or maximum security setting rather than a minimum security as is presently the case. Following the course of treatment, the individual would be transferred to the Department of Corrections to carry out the remainder of his sentence after which he would be paroled in accordance with the Uniform Code of Corrections statute and mandated to a course of outpatient therapy in a psychiatrically and judicially supervised treatment setting. The mentally disabled, neither culpable nor innocent (NCNI) plea is the vehicle which actually replaces the insanity defense. It is designed to meet the needs of those few people who commit crimes in such a disorganized mental state as to raise serious questions as to the validity of their responsibility at the time of the crime. The crucial point here is that they are assessed to be NCNI since an actual crime was committed. DMHDD recommends that if the court finds after expert testimony that the NCNI is valid, the criminal charge would be dropped and the individual would not be sentenced. Instead he or she would be remanded to DMHDD for treatment in a medium or maximum security facility pending the treatment plan recommendations of an expert panel. Following a course of treatment at DMHDD facility, the individual would be discharged and would be referred to a psychiatrically and judicially supervised outpatient treatment setting. By providing the individual and the court with this second option, the revised insanity defense law would be taking into consideration the objection that it would be unjust to require a defendant who is restored to sanity to be punished for a crime committed while truly insane. It is my contention, however, that individuals may use this option only once and that if they commit the same or any other crime, they could no longer validly plead irresponsibility. These two options cover the entire spectrum of mental disabilities and offer a sense of flexibility and security not present in the existing system. By making outpatient therapy an integral part of the treatment system, the right of the individual to receive treatment as well as the right of the public to be protected are respected in a rational manner. Dr. Robert A. deVito, former director of the Department of Mental Health and Developmental Disabilities, is now professor and chairman of the Department of Psychiatry at Loyola University Medical Center in Chicago.

The law and psychiatry Continued from preceding page Once DMHDD decides that a patient is ready for release, it must notify the court of the decision. The court can then request a hearing on the department's decision and can order an examination of the defendant by a physician not employed by DMHDD. If the court finds the patient still in need of treatment, it can order DMHDD to continue treatment along with any conditions the court finds necessary. P.A. 80-164 has put constraints on DMHDD and established a closer working relationship between the department and the courts. H.B. 1010 (P.A. 81-1497), recently signed by the governor, will continue the tightening up of post-trial care for NGRI defendants (see "Legislative Action" p. 28). With these laws on the books, Illinois seems to be moving towards the Maryland system. Maryland retains the NGRI defense and, like Illinois, requires detailed reports from the hospital to the court. Unlike Illinois, Maryland has a five-year conditional release program for all NGRI defendants found able to function in society. The program requires that a social worker stay in close contact with the patient. (Rush Presbyterian-St. Lukes Hospital in Chicago has an out-patient program for potentially dangerous patients which is similar to the Maryland model.) There have also been proposals to eliminate the NGRI plea and substitute a plea of Guilty but Mentally Ill. This was done in Michigan with mixed results. Apparently there have been both practical and legal problems involved in trying a defendant on criminal charges and in a separate hearing determining the defendant's sanity or insanity. In Illinois, legislation has been introduced since 1977 to change or eliminate the NGRI plea. In 1980, S.B. 1482, sponsored by Sen. Adeline J. Geo-Karis (R., Zion) would make a distinction between "insanity" and "mental illness" and provide for a plea of "guilty but mentally ill" in which a mentally ill defendant could be sentenced in the same manner as a healthy defendant and would, after receiving treatment at DMHDD, serve the remainder of his or her sentence in Corrections. S.B. 1482 was referred to the Senate Rules Committee. S.B. 61, sponsored by Sen. Roger A. Keats (R., Kenilworth), would repeal the insanity defense and provide that the defendant's fitness can be an issue only at sentencing or execution. Sent to the Senate Judiciary II Committee, S.B. 61 was amended to become a vehicle for DMHDD's proposal, backed by Dr. Robert deVito, who was then director of DMHDD. As amended, S.B. 61 would eliminate the NGRI plea and substitute two new options: the plea of "culpable and mentally disabled" and the plea of "mentally disabled, neither culpable nor innocent (see deVito, p. 14)." Illinois seems to be moving in the direction of the Maryland system, which has a five-year conditional release program Donna Pedro is a graduate student in the Legal Studies Program at Sangamon State University.

Should the insanity defense be eliminated? Continued from page 15 Few juries would understand the meaning of the new verdict and would seize upon it as a compromise without realizing the effect would be to eliminate the mental state from criminal offenses "culpable but mentally ill," as well as verdicts of "guilty" and "mentally disabled, neither culpable nor innocent," few juries would understand the meaning of the verdict: "culpable but mentally ill." Juries would sieze upon it as a compromise without realizing that the effect of such a verdict would be to eliminate the mental state from criminal offenses and turn laws prohibiting certain acts into strict liability statutes. In addition, defendants found "culpable but mentally ill" could be deprived of effective treatment for their disorders if DMHDD finds that they have reached the maximum benefit of treatment from the DMHDD facility. Thus, the verdict of "culpable but mentally ill" creates the worst of all possible worlds for a person who should be the object of solicitude rather than of condemnation. The present framework for disposition of an insane person in the criminal justice system is workable. The criminal justice system filters out a small fraction of cases where it is not appropriate to impose criminal liability. Persons who are found not guilty by reason of insanity are sent to DMHDD where they should receive treatment. Such persons are returned periodically to the courts for review of their mental status. When the court determines that the person safely may be permitted abroad in the community, he or she is released from custody. This system insures that the treatment process is implemented by an apparently unwilling DMHDD. It should also help to alleviate the great fear of psychiatrists that they will be held financially responsible if a released person subsequently commits a crime against another person because it is a judge, rather than the psychiatrist, who makes the ultimate decision to release the person. If legislation were proposed to alter the definition of the insanity defense, one might quarrel with the definition but not with the premise, i.e., that due process requires that an insanity defense be available to the appropriate defendant. Insertion of a new special verdict of "culpable but mentally ill," however, serves no legitimate function except to limit use of the insanity defense through sleight of hand. If the insanity defense is to be modified, let us do so straightforwardly. Let us not hide behind a tangle of new procedures which will only serve to punish more harshly those defendants who are unfortunate enough to have severe psychological problems. Mary McCormick is director of the Illinois Defender Project in Chicago and a staff attorney at Northwestern University Legal Clinic. Donald Paull is assistant Cook County public defender and has a Ph.D. in clinical psychology.

November 1980/Illinois Issues/16-17