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X. American Bar AssociationThe Hinckley not guilty by reason of insanity verdict (involving Hinckley’s attempted assassination of President Reagan) was in 1982. This caused a hue and cry for improvement in handling mental disability defenses. (Prior to the Hinckley verdict the American Bar Association had been studying such defenses.) In February 1983 the American Bar Association House of Delegates approved a tightened insanity defense. However, eighteen months later, in March 1984, the ABA House of delegates adopted an additional standard. In effect this offered the opportunity for defendants to dodge the tightened insanity defense. This was American Bar Association Criminal Justice Mental Health Standard 7-6.2 (i.e. the defense and treatment oriented diminished capacity mens rea concept discussed throughout this article).239 To my knowledge, unlike the tightened insanity defense, there was very little media or public attention regarding Standard 7-6.2. Arguably the American Bar Association might be said to be taking "law and order" bows for tightening the insanity defense and yet offering a way to shoot below it with diminished capacity mens rea.240 This is not to say that Standard 7-6.2 was hidden. As indicated in this article it was fully set forth and described in American Bar Association publications. Nevertheless, because it was included in those publications along with many other concepts, in my judgment it has not received enough media or public attention.
It would be worthwhile at this time for readers to again scan through Section III of this study (American Law Institute Model Penal Code - Section 4.02(1)). The basic point, as developed in that Section, is that ABA Standard 7-6.2 is essentially the same diminished capacity mens rea type of concept as the older defense and treatment oriented ALI Model Penal Code Section 4.02(1). The important consideration for this study is that in earlier years jurisdictions watered down the law and order effects of supposedly tight insanity defenses with the opportunity to use ALI Section 4.02(1). In more recent years, ABA Standard 7-6.2 has, in effect, joined forces with ALI Section 4.02(1) to reduce the effectiveness of tightened insanity defenses.
Throughout this article there are examples of the defense and treatment oriented effects of ABA Standard 7-6.2 and ALI Section 4.02(1). Without repeating all of the details at this time, readers can review such examples by referring back to the following: In Section V (California) see text accompanying notes 45-50, 63-65, 69, and 71; also see California Recommendation (3) at note 104 and accompanying text, and California Additional Consideration (b), the last paragraph in Section V. In Section VI (Federal) see the entire text of Phase Two (i.e.between the insertion of notes 138 and 144); also see the text accompanying notes 153-162; and text accompanying note 167 and throughout the entire balance of Section VI (Federal). In Section VIII (Idaho, Montana And Utah) see point (2) in the third paragraph at the start of that Section; and Point (3) in the Recommendations at the end of that Section. In Section IX (American Medical Association ) see text accompanying notes 232-233; and point (3) in the second paragraph of the Recommendations at the end of that Section.
Recommendations For American Bar Association (And American Law Institute, American Medical Association And American Psychiatric Association)
In effect, the recommendations for this Section are encompassed in earlier recommendations in this study. Nevertheless, since they are at the heart of the problems we are considering, to some extent they will be repeated here.
Because of ALI Section 4.02(1) and ABA Standard 7-6.2, arguably the gates have been left open by the American Bar Association and the American Law Institute for jurisdictions (in statutes and court decisions) to allow in evidence directly on mens rea mental disorders less serious than required by traditional insanity defenses. There is nothing in those concepts or in related ABA or ALI commentaries requiring that mental disability needs to be severe. In addition, there are no functional requirements involving knowledge or control (such as in traditional insanity defenses). Thus, if policymakers, legislatures, courts (or interested organizations developing policies or standards) look to the American Law Institute and the American Bar Association for guidance there appears to be very little that would discourage them from authorizing minor mental disorders to be admitted directly on mens rea. At least it can be said that in view of ALI Section 4.02(1) and ABA Standard 7-6.2 defense attorneys are given ammunition to argue for the admissibility of minor mental disorders.
It is my recommendation that the American Bar Association and American Law Institute (in addition to the American Medical Association and American Psychiatric Association) consider changing their policies or standards for the purpose of increasing the required severity of mental disability evidence admissible directly on mens rea. Maybe this could have the effect of encouraging jurisdictions (in statutes and court decisions) to take similar action.
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Notes
239 Huckabee 1987, supra note 1 at 15-18.
240 Cf. id. at 1. See also Huckabee 1993 supra note 1 at 476-78, 502, 514.