Jewish World Review Nov. 20, 2003 / 25 Mar-Cheshvan, 5764

Dan Abrams

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Why it's time to throw out the insanity defense, as we know it


http://www.NewsAndOpinion.com | The man who shot President Reagan in 1981, John Hinckley, is in a courtroom fighting for more unsupervised visits with his family. Hinckley was found not guilty by reason of insanity, and now many doctors believe he's "cured".


Now, while Hinckley was likely legally insane when he shot the president and may very well be a lot better now, I'm uncomfortable relying on a subjective interpretation by doctors, allowing a battle of the medical experts to fully resolve whether and when someone should be free.


We need to create a more definitive, predictable system when it comes to insanity. The victim's families should not have to constantly wonder, will the person who shot my loved one get out, and if so, when? But that also doesn't mean we have to ignore mental illness.


Here's my suggestion, a system akin to the 13 states that allow jurors to find someone guilty, but mentally ill. In those cases the defendant is generally sentenced as he or she would have been, but the judge also can take into account the treatment needed.


After the person is "cured" he or she still must serve the remainder of his time. But those states still have an insanity defense as well.


Now, mental health advocates complain that guilty, but mentally ill, effectively treats the mentally ill like any other harden criminals when it comes to the sentence, and that's a fair point. So why not let the judge take the mental state into account in sentencing, even reduce the sentence, if appropriate. But at least impose a minimum, a minimum time that could be served in a high security mental hospital, if need be, but at least a sentence.


And if the judge believes the person is "cured" then he or she could be released, but only after that minimum sentence is served. Victims' families deserve more than being told we have no idea how long the criminal will remain in a mental hospital. That totally depends on his progress.


Yes, our criminal justice system is based on intent, and someone who's totally insane may not have "the intent to kill."


But you know what? Intent is a pretty squishy word. In the law people get executed all the time for decisions that took just seconds to make, and the term insanity is just as difficult to define.


It's time to provide some structure to the system and some closure to the victims by saying good-bye to an insanity defense that can leave a criminal sentence entirely in the hands of the criminal.

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JWR contributor Dan Abrams anchors “The Abrams Report,” Monday through Friday from 9-10 p.m. ET on MSNBC TV. He also covers legal stories for “NBC Nightly News with Tom Brokaw,” “Today” and “Dateline NBC.” To visit his website, click here. Comment by clicking here.

Up

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