Accomodating the killer.

OF ALL OF THE MATTERS that psychiatrists, psychologists, and social workers undertake, support of accused criminals', and particularly killers', pleas of "not guilty by reason of insanity" or, in some states, "not criminally responsible," is perhaps the most outrageously invalid. Many of their clients or patients are voluntary. Whatever debates exist concerning the prescribing of psychoactive drugs, such activities usually are desired by the recipients. Whatever role mental health practitioners play in adjudicating interpersonal legal disputes, at least they theoretically can bring the concept of "the reasonable man" (now, perhaps, the reasonable person) to bear without resorting to creating exculpatory bases for others' derelictions of responsibility in decisionmaking. Even when testifying in court regarding the penalty phase after a verdict has been rendered, the mental health personage usually argues for mitigation, not elimination, of punishment.

When defense mental health "experts" testify to a lack of a defendant's criminal intent, these "hired guns" are aiming to have the perpetrator confined to a psychiatric institution rather than a jail. In some cases, a murderer who is in prison for life without parole, as was the case early in 2008 for Maryland's Kevin Johns, can kill again with the hope of being found insane or not criminally responsible and, therefore, be taken out of horrible prison confines and placed in a different location for incarceration. Moreover, what if this prisoner is in a state (which he is in Maryland) that effectively has eliminated executions--not by law, but by practice? In short, what does a rational murderer who faces life imprisonment without the possibility of parole, but not execution (regardless of what he does), potentially do to improve his lot?

He murders again and, if he has a history of being violent in a repeated and unconventional way, he specifically may avoid going to--or escape--Supermax prison (in Baltimore, Md.) and instead get sent to a relatively more pleasant psychiatric facility. This arguably was the motive in Johns' brutal killing of Philip E. Parker Jr. on a prison bus. Johns has had a long, violent history, culminating in the killing of Parker in February 2005. The judge, Emory A. Plitt Jr., originally decided in June of 2008 that Johns was "not criminally responsible." The appalled concern of many was that this decision would allow Johns to be placed in a psychiatric facility wherein no one could guarantee that his violence could be quelled. In addition, such a legal outcome would appear to be a direct reward for the murderer's killing again and perhaps precisely that for which he was aiming.

Judge Plitt may have redeemed himself slightly by subsequently deciding to let the Maryland Department of Health and Mental Hygiene determine that Johns receive psychiatric care at Supermax prison rather than at Clifton T. Perkins Hospital, the first time such a determination has been made for someone who has received such a verdict. Again, though, there is a much more important issue not answered by the bench's surprise decision that eliminated Johns' efforts to avoid Supermax: why would psychiatrists and then a judge conclude that a killer whose crime may benefit him could not appreciate the criminality of his conduct or conform that conduct to the requirements of the law--the criteria by which a perpetrator may be found "not criminally responsible" in Maryland or "not guilty by reason of insanity" in other states?

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The prosecutor in the Johns case, S. Ann Brobst, put it perfectly: "He doesn't care if he gets caught. He was just sentenced to life without parole.... He has nothing to lose by killing someone else. He has everything to gain."

Melissa Rodriquez, the mother of Parker, who was serving a short sentence for committing a robbery with a pellet gun, was outraged, but virtually ignored, as too often is the case with deceased victims' relatives. She said tellingly in front of television cameras, "Everything's about Kevin, Kevin, Kevin.... I hope this judge realizes what he's done. [The victim] next time may be a guard."

David Williamson, a psychologist, testified for the defense, and--tree to all insufficiently ethically concerned insanity defense lawyers--said without evidence that Johns' symptoms were difficult to fake. Then again, so were Vincent Gigante's. Gigante was the reputed leader of the nation's largest criminal organization, the Genovese family. For decades, Gigante walked around talking crazily to telephone polls. A group of very prestigious forensic psychiatrists from top American universities claimed for the defense that there was no way he could be faking mental illness. He was, one said on "60 Minutes," "exactly the kind of patient we see in a dementia clinic." In addition, nationally-recognized neuropsychiatrist Monte Buchsbaum insisted that a Positron Emission Tomography (PET) scan proved Gigante's incompetence to stand trial. Gigante walked into a courtroom in 2003 and conceded via a plea agreement that he had been faking it all along.

Was Johns aware of what he was doing? He openly predicted he would kill again. A long history of particularly brutal, unconventionally violent behavior should not be used as evidence that a person is not responsible for what he or she does. The American Psychiatric Association itself a few years ago had on its website the statement that it "is the job of the judge or jury [not psychiatrists] to determine criminal responsibility." To the knowledge of this writer, no mental health expert ever has been asked publicly to reconcile this statement with the practice of testifying for those who plead insanity. Besides, "insanity" is not an accepted psychiatric concept. In the Johns case, the judge fumbled and gave additional hope to killers trying to avoid prison, notwithstanding his refusal to send Johns to a psychiatric facility.

Simultaneous with this case, talk radio in Maryland, along with other media outlets, sporadically were discussing the possible ramifications of Johns' succeeding in his possible goal of relocating his incarceration venue at no cost to him. If Peter Finley Dunne's Mr. Dooley's dictum that "the Supreme Court follows the election returns" is tree, one only can hope that public outrage at the undermining of the criminal justice system with strategic uses of the insanity plea will serve to lessen such attempts. The outrage over the successful plea of not guilty by reason of insanity by John Hinckley--Pres. Ronald Reagan's would-be assassin--led to tighter control over such pleas and specifically the change in Federal courts to the presumption being that the accused is not legally insane. It was the opposite for Hinckley in the early 1980s when his plea, once accepted by the judge, acquired a presumption of truth that may have led to its success.

Forensic psychiatrists are prone to point out that the insanity plea is successful in only one out of every 400 attempts. Such statistics, while literally tree, ignore the excusing effect of psychiatry in the courtroom and hide the fact that, while relatively small, that success rate translates into thousands of cases over the years.

The outcome of perhaps an even more upsetting case is pending in Maryland. Mark Castillo, age 41, was engaged in a long-term custody battle with his wife. She had filed court motions for months pleading that he not be allowed access to their children. He taunted and threatened his wife (in later publicly publicized recordings), telling her that one way he really could get to her would be to kill her offspring. On March 30, 2008, he did just that, ending the lives of their sons Anthony, Austin, and Athena--ages six, four, and two, respectively. In the early afternoon at a downtown hotel, the site of the killings, he contacted hotel security saying what he had done and threatening to commit suicide. His efforts regarding ending his own life were less successful and perhaps less eager.

Neighbors, not particularly surprisingly, described Castillo as a friendly guy--one even calling him "an excellent father"--as is not infrequently the case with violent family perpetrators. Despite the clarity of the expressed motive by the killer to make the mother, pediatrician Amy Castillo, "live without them," Castillo pleaded "not criminally responsible." He likely will not find it difficult to engage psychiatric forensic "experts" to help him make his case. As for his prosecution, psychiatrists in the Circuit Court Medical Services Division of Baltimore will be making a recommendation to the court as to the criminal responsibility of Castillo. Prosecutors have given mixed signals as to whether they will accept that recommendation or contest the plea, if necessary, but their most recent statements (as of this writing) imply they will seek criminal punishment regardless of what the psychiatrists recommend.

When psychiatrically suspect findings are nationally publicized, such as in the Hinckley case, the public often puts pressure on the criminal justice system to toughen up. However, the more local the case, no matter how transparent the motive, the less likely the public will demand condign punishment, even if we end up giving license to the murder of defenseless children. Public pressure, on the other hand, may have affected the Johns outcome positively, and perhaps there even might be a small--albeit very small--trend in this regard.

Richard E. Vatz is Associate Psychology Editor of USA Today, an editor of Current Psychology, and professor of rhetoric at Towson (Md.) University.