VIII. Idaho, Montana And Utah

Idaho, Montana and Utah have abolished traditional insanity defenses. Instead, they have adopted the so-called mens rea insanity defense This was earlier proposed by the United States Department of Justice for the federal system, but was not approved by Congress. It is previously described in this article in Phase One of Section VI (Federal). The mens rea insanity defense has also been described in my earlier articles.¹⁹⁸

As previously noted in the first paragraph under "Phase One" in Section VI, the mens rea insanity defense is, in effect, a variation of the mens rea model (Glossary Item II D). It involves the same types of problems previously discussed throughout this study. This particularly includes the potential erosion from strict mens rea (Glossary Item II E) to diminished capacity mens rea (Glossary Item II F). Phase One in Section VI develops the history of the mens rea insanity defense proposal for the federal system, which was ultimately not adopted for that system. In fact, however, since it has been adopted in Idaho, Montana and Utah, the problems discussed regarding its potential use in the federal system are basically the same in those states. They will not be fully repeated here. Instead, set forth below is a summary, listing the types of problems. This will generally follow the sequence in Phase One, Section VI (without repeating cross references or footnotes) Readers should refer to that section for more details and for a consideration of similar problems in Idaho, Montana and Utah.

(1) Arguably, abolition of the traditional insanity defense and directly focusing on mens rea is beneficial to defendants in the sense that mental health expert witnesses, under the guidance of defense attorneys, can testify directly regarding mens rea without the limiting legal framework of traditional insanity defenses (involving knowledge and control). (2) Because of similarity of language of the mens rea insanity defense to the defense oriented American Law Institute Section 4.02(1) and the more recently adopted American Bar Association Criminal Justice Mental Health Standard 7-6.2, defense counsel can argue that the mens rea insanity defense is really not the tight law and order concept described by its proponents. (3) A cure for points (1) and (2) above would be to retain a M’Naghten type traditional insanity defense, and add to it a strict mens rea concept (Glossary Item II E) outside the traditional insanity defense, which involves admitting in evidence only severe mental disability which shows that the defendant fully lacked the mental capacity for mens rea for the particular crime charged. (4) United States Justice Department officials described abolishing the traditional insanity defense and adopting the mens rea insanity defense as a "law and order" approach. Arguably this is not correct, because of the potential defense oriented interpretation of the concept based on points (1) and (2) above. In fact, as noted in the discussion in Phase One of Section VI, the official publication of the American Law Institute, Model Penal Code And Commentaries, indicates that the mens rea insanity defense is similar to [defense oriented] American Law Institute Section 4.02(1).

Additional points to consider regarding the mens rea insanity defense are discussed in my 1980 book. They are summarized in Phase One Section VI . For example, the language of the mens rea insanity defense is similar to various defense oriented concepts recognized in the federal system. Also, Justice Department representatives presented arguments, included in Senate Report 95-605. It was stated that there was favorable reaction of bar groups to the proposed mens rea insanity defense. Replying to this, in my book I questioned whether or not such support was based on the tight, law and order, arguments of the Justice Department or a more liberal interpretation of the mens rea insanity defense which, perhaps, defense attorneys thought might be possible. Some authorities have said that the mens rea insanity defense can be interpreted in either a defense or prosecution oriented manner. Thus, at least some courts will tend to agree with the defense orientation.

In Idaho, Montana and Utah, we find that the mens rea insanity defense was adopted on the following dates: Montana-1979;¹⁹⁹ Idaho-1982;²⁰⁰and Utah-1983.²⁰¹ In State v. Herrera, a 1995 opinion of the Supreme Court of Utah, there is a discussion of the abolition of the traditional insanity defense in Utah and its replacement by a new type of insanity defense (i.e. the mens rea insanity defense, as discussed above). The Court calls the new law "the mens rea model" and refers to my 1987 Pepperdine Law Review article which discusses that concept.²⁰² In the Herrera opinion, however, there is no mention that there are two subdivisions involved in the mens rea model (Glossary Item II D): (1) strict mens rea (Glossary Item II E) and (2) diminished capacity mens rea (Glossary Item II F).

In the Herrera opinion the Supreme Court of Utah included the following statement as part of the background for abolition of the traditional insanity defense and adoption of the mens rea insanity defense: "When John Hinckley was found not guilty by reason of insanity for shooting President Ronald Reagan and Press Secretary James Brady, public outrage prompted Congress and some states to reexamine their respective insanity defense laws. As a result, in 1983 Utah abolished the traditional insanity defense in favor of a new statutory scheme."²⁰³ The implication in this statement is that this was an effort to reduce admissibility of mental disorders in criminal cases. Nevertheless, for all of the reasons discussed above in this section and in Phase One of Section VI, in my judgment this law and order purpose has not been achieved. Other language in the Herrera opinion describing the new statute, involving words such as "limits" or "limit" the traditional insanity defense,²⁰⁴implies that its purpose was to reduce admissibility of mental disorder evidence. Again, in my opinion for all the reasons previously stated in this study regarding potential erosion from strict mens rea (Glossary Item II E) to diminished capacity mens rea (Glossary Item II F) this purpose has not been achieved.

In addition to enacting the mens rea insanity defense in 1983, it is of interest that in 1986 the Utah legislature enacted an amendment which authorizes a diminished capacity concept (as well as the mens rea insanity defense).²⁰⁵ Thus, the diminished capacity concept is now specifically recognized and is available for use by defendants. What does this do to any purported tightening effect of the mens rea insanity defense? It seems to almost guarantee the erosion from strict mens rea to diminished capacity mens rea as discussed throughout this article.

Brian E. Elkins, has written an excellent article regarding the situation in Idaho (which could be considered generally applicable to Montana and Utah).²⁰⁶ His emphasis is on returning to a traditional insanity defense because, under the mens rea insanity defense, "Idaho is now incarcerating people that suffer from severe mental illnesses instead of providing care and treatment. Thus, we do not know how to prove how mental illness evidence affects mens rea and it is difficult to understand what we are trying to prove by punishing people who lack responsibility for their actions."²⁰⁷ In effect, he stresses the lack of framework under the mens rea insanity defense in Idaho, which results in "questions if Idaho is convicting individuals who lack criminal responsibility or a culpable mental state."²⁰⁸

I am in agreement with Mr. Elkins on the lack of legal framework under the mens rea insanity defense. The difference is that Mr. Elkins is disturbed that not enough mental illness evidence will be admitted, thus causing punishment of those who are not responsible for their actions. On the other hand, it is my position that the lack of legal framework causes potential erosion from strict mens rea (Glossary Item II E) to diminished capacity mens rea (Glossary Item II F), thus resulting in not adequately prosecuting and punishing defendants. In my judgment, the potential under the mens rea insanity defense for "loose cannon" type of testimony of mental health professionals directly on mens rea needs to be brought under control. In any event, I am in agreement with Mr. Elkins regarding the need for a traditional insanity defense legal framework, although for a different reason. (Also, as noted earlier, I would recommend M’Naghten as the traditional insanity defense rather than the American Law Institute test recommended by Mr. Elkins.) ²⁰⁹

With reference to Montana it is of interest that in its Korell opinion the Supreme Court of Montana recognized that the mens rea insanity defense adopted in 1979 may have opened wider the admissibility of mental disability evidence, stating that "the amendments to the law on mental disease or defect may actually have lowered the hurdle mentally disturbed defendants must clear to be exculpated. In order to be acquitted, the defendant need only cast a reasonable doubt in the minds of the jurors that he had the requisite mental state. See Bender, After Abolition: The Present State of the Insanity Defense in Montana, 45 Mont. L.R. 133, 141 (1984)."²¹⁰

In a 1994 Note in the Montana Law Review, Stephanie C. Stimpson says that advocates of abolition of the insanity defense in that state argue that it is a way to protect society from dangerous criminals and restrict fraudulent use of the insanity defense.²¹¹ This reflects the strict mens rea (law and order) approach, taken by early proponents of abolition (including the United States Justice Department). Similar to the position taken in the article by Brian Elkins, previously discussed (footnotes 206-208 and accompanying text) she discusses the potential violation of the rights of defendants.²¹² She also recommends a return to a traditional insanity defense.²¹³ Again, it is of interest that Ms. Stimpson, Mr. Elkins and I arrive at the same conclusion (i.e. return to a traditional insanity defense). However, my reason is broader in a sense. It involves moving back to a legal framework so there can be more control over the admissibility of evidence of mental disability and the testimony of mental health experts. This could help solve the problems discussed by Ms. Stimpson and Mr. Elkins, and also help stop the potential erosion from strict to diminished capacity mens rea.

An excellent summary of the issues under consideration here is set forth in a 1991 analysis in the Harvard Law Review.²¹⁴ It focuses on the Supreme Court of Idaho Searcy case,²¹⁵ but summarizes points made earlier in this article regarding the general problems. For example, it points out that in Searcy the Idaho Supreme Court leaves the "tangled relationship between mens rea and mental illness unresolved."²¹⁶ It says that the Court’s silence on this leaves open two conflicting interpretations: "On the one hand, trial courts may interpret mens rea broadly so as to encompass all considerations of mental illness, rendering abolition of the insanity defense ineffective. On the other hand, courts and legislatures may define mens rea so narrowly as to exclude all considerations of mental illness, raising due process concerns not addressed in Searcy."

It is clear that the foregoing quotation reflects a major point being made in this article. The mens rea insanity defense can be interpreted in either a strict mens rea (Glossary Item II E) or a diminished capacity mens rea (Glossary Item II F) manner. Thus, it is wide open for erosion from the strict mens rea approach promoted by law and order proponents (such as United States Justice Department representatives) to diminished capacity mens rea, as discussed throughout this article.

The Harvard Law Review article further develops this point by stating that "trial courts may err on the side of admitting all such evidence for fear that exclusion would deny the defendant the opportunity to rebut an intrinsic element of the criminal charge."²¹⁷ Again, this would be the diminished capacity mens rea interpretation This involves the lack of a legal framework and reflects the point made earlier regarding the difference between my approach and that of Brian Elkins. I am concerned about the potential erosion from strict mens rea to diminished capacity mens rea, thus resulting in not adequately prosecuting and punishing defendants. On the other hand, Mr. Elkins is disturbed that not enough mental illness evidence will be admitted, thus causing punishment for those who are not responsible for their actions. The Harvard Law Review also covers this point made by Mr. Elkins by stating: "At the other extreme, Section 18-207 may become in a sense, too effective. Consistent with Searcy, courts and legislatures could adopt strict evidentiary rules that would exclude all evidence of mental illness as irrelevant to mens rea."²¹⁸ The article goes on to question the constitutionality of such a strict interpretation, and also questions the fairness of the Searcy opinion, stating that it has not faced up to the issues.²¹⁹

It is of interest to consider the early history of the mens rea insanity defense (prior to the proposals by the Justice Department for the federal system, and prior to adoption of that defense in Idaho, Montana and Utah). An early recommendation to abolish the traditional insanity defense and to focus directly on mens rea was made in 1915 by a committee of the American Institute of Criminal Law and Criminology. In effect, it could be considered an early version of the mens rea insanity defense. That recommendation was as follows: "No person shall hereafter be convicted of any criminal charge when at the time of the act or omission alleged against him he was suffering from mental disease and by reason of such mental disease he did not have the particular state of mind that must accompany such act or omission in order to constitute the crime charged."²²⁰

In his report²²¹Professor Edwin Keedy, the Chairman of the Committee, wrote that this provision is "consistent with the present views of the medical profession regarding mental disease, for it does not limit the defense to any particular form or symptoms of mental disease, and does not attempt to draw the line between sanity and insanity." Also, he wrote: "Psychiatrists and psychologists no longer regard insanity as a definite, clearly defined state, with a sharp line of cleavage separating it from sanity, but simply as mental unsoundness which may be as varied in its forms, degrees and symptoms as physical ill health." Thus, he further wrote that under the above quoted proposal the expert witness would not be asked to state whether the defendant was sane or insane, "but would be asked to state the symptoms of his disease." He said that the judge "would then describe to the jury the state of mind which is involved in the crime charged, and the jury would then determine whether the defendant, by reason of the mental symptoms enumerated by the witness, had the particular state of mind described by the judge." In a description of the 1915 recommendation of the American Institute of Criminal Law and Criminology, in his book Thomas Maeder wrote: "Far from being an attempt to limit the role of psychiatry in criminal trials, the proposed model legislation... was intended to free psychiatric witnesses from the bothersome and archaic restraints of legal insanity tests, and to permit them to describe mental illness in all its forms, degrees and symptoms, using their own terms, giving juries the benefit of current scientific knowledge."²²²

Thus this early history of the mens rea insanity defense indicates that at least some psychiatrists and psychologists welcomed it as a way of liberating their testimony from the restrictions of traditional insanity defenses (and thus increasing their involvement in criminal justice matters). In spite of this, in 1973 the United States Department of Justice began pressing for its adoption in the federal system as a way of decreasing medical and mental health professional involvement in these matters. This included a letter from then Attorney General William French Smith to Senate Majority Leader Howard H. Baker, published in the July 1, 1982 Congressional Record.²²³

This type of argument by Justice Department representatives to the effect that abolishing the traditional insanity defense and adopting the mens rea insanity defense would decrease admissibility of mental disability evidence in these matters in the federal system started in 1973.²²⁴ Such arguments continued during the period in which the mens rea insanity defense was adopted by Montana in 1979, Idaho in 1982, and Utah in 1983.²²⁵ On the other hand, it is my position that for all of the reasons extensively discussed throughout this article, the mens rea insanity defense is more defense oriented than its Justice Department proponents stated. Thus, a question here is to what extent the legislatures in Idaho, Montana and Utah were influenced by these "law and order" arguments in their decisions to enact mens rea insanity defenses? A further question involves whether or not an element in successfully enacting such legislation might have been that some defense attorneys and some treatment oriented mental health professionals may have recognized that the mens rea insanity defense was more defense oriented than indicated in the rhetoric from the United States Justice Department. This appears to be a legitimate question for all of the reasons previously discussed in this article. Of particular interest is the fact that the mens rea insanity defense gives to some treatment and defense oriented psychiatrists and psychologists the opportunity to successfully achieve their goal which has existed for many years. This involves liberating their testimony from the legal framework restrictions of traditional insanity defenses, including knowledge of right and wrong, and/or ability to control conduct; plus not worrying too much about the severity of the mental disability involved.²²⁶ With reference to this, it is of interest that some defense oriented commentators have, in effect, recommended adoption of the mens rea insanity defense as a way of broadening admissibility of mental disability evidence.²²⁷

Recommendations For Idaho, Montana And Utah

The recommendations for Idaho, Montana and Utah are essentially the same as those for California (end of Section V); the federal system (end of Section VI); and the military (end of Section VII). In summary (using the California recommendations as a pattern), these include (1) adopt a M’Naghten traditional insanity defense; (2) establish a strict mens rea concept for evidence admitted directly on mens rea (outside the insanity defense), requiring a severe mental disability demonstrating that the defendant completely lacked the mental capacity for the mens rea involved in the offense; (3) legislative history and court opinions should make it clear that A.L.I. Model Penal Code Section 4.02(1) and A.B.A. Criminal Justice Mental Health Standard 7-6.2 are not the strict mens rea concept involved in (2) above; and (4) courts should require hearings outside the presence of the jury to determine if the evidence is severe enough to be presented to the jury.

The problems referred to in the "Additional Considerations" sections at the end of Sections V, VI and VII are also applicable to Idaho, Montana and Utah.

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 Notes

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 ¹⁹⁸ Huckabee 1993, supra note 1 at 442, 452-458; Huckabee 1989, supra note 1 at 606; Huckabee   1987, supra note 1 at 26-28.

¹⁹⁹ State v. Korell, 690 P.2d 992 at 996 (Montana 1984).

²⁰⁰ Brian E. Elkins, Idaho’s Repeal Of The Insanity Defense: What Are We Trying To Prove? 31 Idaho L. Rev. 151 at 155-156 (1994).

²⁰¹ State v. Herrera, 895 P.2d 359 at 361 (Utah 1995).

²⁰² Id. at 362; Huckabee 1987, supra note 1 at 25.

²⁰³ State v. Herrera, 895 P.2d at 361.

²⁰⁴ Id. at 362, 363, 367.

²⁰⁵ Huckabee 1993, supra note 1 at 456.

²⁰⁶ Brian E. Elkins, Idaho’s Repeal Of The Insanity Defense: What Are We Trying To Prove?, 31 Idaho L.Rev. 151 (1994).

²⁰⁷ Id. at 152.

²⁰⁸ Id. at 153. Cf. id. at 166-171.

²⁰⁹ Cf.. Id. at 170.

²¹⁰ State v. Korell, 690 P.2d 992, 1000

²¹¹ Stephanie C. Stimpson, State v. Cowan: The Consequences Of Montana’s Abolition Of The Insanity Defense, 55 Mont. L. Rev. 503-04, 510, 523-24 (1994).

²¹² Id. at 504-05, 520-24.

²¹³ Id. at 524.

²¹⁴ Recent Developments --- Insanity Defense ---Idaho Supreme Court Upholds Abolition Of Insanity Defense Against State And Federal Constitutional Challenges,---State v. Searcy, 118 Idaho 632, 798 P. 2d 914 (1990), 104 Harvard Law Review 1132 (March 1991) [Hereinafter 1991 Harvard Law Review.]

²¹⁵ State v. Searcy, 798 P.2d 914 (1990).

²¹⁶ 1991 Harvard Law Review, supra note 214 at 1132-33.

²¹⁷ Id. at 1136.

²¹⁸ Id. at 1137.

²¹⁹ Id. at 1137-38.

²²⁰ Edwin Keedy, Insanity And Criminal Responsibility, 30 Harvard L.Rev. 535, 536 (1917) [hereinafter Keedy 1917]. Cf. Edwin Keedy, Insanity And Criminal Responsibility --Report Of Committee ‘A` Of The Institute, 7 J. Crim. L. & Criminology 484, 486 (1916)[hereinafter Keedy 1916]; THOMAS MAEDER, CRIME AND MADNESS 154 (1985) [hereinafter MAEDER 1985].

²²¹ Keedy 1916, supra note 220 at 487. Cf. Keedy 1917, supra note 220 at 555; MAEDER, supra note

220 at 154.

²²² MAEDER, supra note 220 at 154.

²²³ 128 Cong. Rec. 15,659 (1982). In his Fall 1982 article in the Missouri Law Review the Attorney General reiterates and expands upon the points in that letter. See William French Smith, Limiting The Insanity Defense: A Rational Approach To Irrational Crimes, 47 Mo. L. Rev. 605 at 615-19 (1982).

²²⁴ See supra note 120 and accompanying text.

²²⁵ See supra notes 199, 200 and 201, and accompanying text.

²²⁶ See supra notes 220, 221, 222 and accompanying text.

²²⁷ Huckabee 1993, supra note 1 at 455-56.