Psychiatry and Criminal Culpability.

The insanity defense is rarely raised in criminal prosecutions in the United States, and when it is raised, it is rarely successful. When it is raised, however, attorneys invariably need a primer on how to use it. Ralph Slovenko in Psychiatry and Criminal Culpability has endeavored to compile the many forms of mental illness, the different forms of the applicable legal standards, and the various systems the defendant acquitted by reason of insanity enters following acquittal. It is a formidable undertaking, and Slovenko has captured much of the universe of insanity law in his survey of it.

Slovenko starts with a bang by introducing the reader first to the Dahmer case in Milwaukee and then to the Hinckley case in the District of Columbia. He correctly points out that die behavior of Jeffrey Dahmer, who murdered, cooked, and cannibalized as many as 15 youths, was probably more bizarre than that of John Hinckley, who wounded former President Reagan and his press secretary, James Brady, in an attempt to gain the love of a young movie actress. Yet the juries found Dahmer sane and Hinckley insane. Such are the vagaries of the law.

The author takes us through the history of the insanity defense, starting with the "wild beast" test and moving quickly to Daniel M'Naghten, the seminal case decided in 1843, and then on to the opinion of the U.S. Court of Appeals for the District of Columbia in the 1954 Durham decision. What evolved over those years was the recognition that the "impairment-of-cognition" test was not in line with modern psychiatric findings. Hence a test that introduced the concept of the defendant's ability to appreciate the wrongfulness of his or her conduct ultimately became the standard.

Interestingly, Slovenko recognizes that the insanity defense transforms a criminal trial into a morality play, thereby relaxing the rules of evidence and making the defendant's life history, including the more sordid details, relevant to the trier of fact. With this history in hand, a jury makes a judgment not only about mental illness but also about whether the accused should be held responsible. It is this latter determination that accounts for the verdicts in the Dabmer and Hinckley cases.

The author's discussion about the American Law Institute (ALI) test of criminal responsibility is useful in understanding the insanity defense. The test states that a "person is not responsible if ... he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law."

The debate over the meaning of "appreciate" rages in the presentation of an insanity defense. The defense argues that, in addition to including cognitive awareness, the term also includes an element of emotional appreciation. The prosecution argues that the term means simply a cognitive awareness. Interestingly, Congress, in revising the law of insanity following the Hinckley verdict, adopted a modified ALI test stating that "the defendant as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts...."

Slovenko writes at length about what mental illness means and what types of mental illness qualify under the test for legal insanity. He points out that the vast majority of people considered legally insane suffer from severe psychiatric illnesses if not psychotic disorders. In his inventory of mental illnesses, Slovenko moves from paranoia to attention deficit disorder and points out that they are all listed and described in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM IV).

The author says that 87 percent of those recently polled believe that too many people acquitted by reason of insanity go free - despite the fact that, in the majority of states, when the defendant so requests, the courts give the jury an instruction on the consequences of a not-guilty-by-reason-of-insanity (NGRI) verdict, which automatically commits the defendant to a mental institution. However, in June 1994, in Shannon v. United States, the Supreme Court said that this instruction was not appropriate in the federal court system. I think Slovenko would agree that this constitutes a step backward for the insanity defense and is not well reasoned.

For the lawyer who is facing the task of preparing an insanity defense, this book would be an especially useful tool. Slovenko is a professor of law and psychiatry at Wayne State University in Detroit. He has practiced law and is quite conversant with evidence rules as they apply in criminal cases in which the insanity defense is raised.

He also makes interesting suggestions about how to get around the harsh result called for by Rule 704(b) of the Federal Rules of Evidence. That rule was designed to prevent an expert from expressing an opinion on the ultimate issue of whether the defendant meets the insanity test; that is, did he or she appreciate the wrongfulness of the conduct?

Vincent J. Fuller, who practices with Williams & Connolly in Washington, D. C., defended John Hinckley in his 1982 trial.