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The law of insanity

No, not the insanity of law. Although, admittedly, if you’ve been locked within its grasp, the inverse of the notion posited in the title may seem equally apt. But the subject here is insanity as defined by, and applied within, the law. Okay, TV people, you’ve seen it on your screens. Some suit in a stentorian voice pops up in an maple-paneled courtroom and declaims “Your Honor, not guilty by reason of insanity!” The courtroom hushes. The Judge yawns, looks bored. And then an outburst erupts from the gallery and the Judge awakens, hammering his gavel with (dare I say?) conviction. A perfect celluloid moment has been captured. But what about the real world? When is someone legally insane and how does their insanity (or the claim of their insanity) affect their legal rights?The term “insanity” is, as you might expect, a social and legal term. What you might not expect, however, is that, strictly speaking, “insanity” is not a medical definition as applied in law. It indicates a condition which renders the affected person unfit to enjoy liberty of action because of the unreliability of his or her behavior with concomitant danger to him/herself or others. Although the term is more or less synonymous with mental illness or psychosis, in law, the term is used to connote that degree of mental illness which negates the individual’s legal responsibility or capacity. Think, if you are old enough, of Flip Wilson’s “the devil made me do it!” and you’ll gain some insight into what constitutes mental incapacity sufficient to abrogate free will and/or a sound and rational apprehension of one’s actions or the consequences of one’s acts.In the Colorado Criminal Code, “insanity” is defined as follows:”A person who is insane…is not responsible for his or her conduct defined as criminal.”The applicable test of insanity is: “A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable; except that care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil conditions, for, when the act is induced by any of these causes, the person is accountable to the law.” This in only half the definition. The other half will follow, but first an observation, then a little parsing. First, the observation; no wonder we need lawyers! Who other than a lawyer could untangle such obfuscation (created, of course, in the first place, by lawyers)? Okay then, now the parsing. Note, first, that what is key is that the afflicted person must only be incapable of distinguishing between right and wrong as to the specific act and only at the time of its commission. Conceivably, our accused might be of sufficiently sound mind to plug a couple of quarters into the parking meter curbside before bounding up a flight of stairs or two and then is seized by such mental incapacity that he cannot apprehend the wrongfulness of plugging a couple of .38 slugs into his best friend’s wife’s cousin. Further, although the night before (and perhaps the night after), if asked, he would have rationally apprised that plugging someone full of .38 slugs was an evil, wicked, depraved and wrongful thing to do, what counts as to legal insanity was his capacity to apprehend its wrongfulness at the time he did the dirty deed. If he cannot meaningfully understand the wrongfulness of the specific act committed at the instant in time the act was done, owing to his mental incapacity, it is legally, the near equivalent of “no harm, no foul.”By the way, we may define “moral obliquity” as, essentially, not giving a hoot as to what he or she has done. “Devil may care” as opposed to “the devil made me do it.” Obliquity deriving, as it does, from the word “oblique”, meaning disingenuous, evasive and/or underhanded. “Moral depravity” or “morally depraved” means without a moral compass, without a conscience, morally bad, corrupt or perverted.The second and alternative test of insanity under the Colorado Criminal Code is thus: “A person who suffered from a condition of mind caused by mental disease or defect that prevented the person from forming a culpable mental state that is an essential element of a crime charged…” Suffer with me, if you will, a tiny bit more linguistic vivisection. Most crimes require a “culpable mental state” in order for a crime to have been committed. “A culpable mental state means that the person acted purposely, knowingly, recklessly or negligently as the law may require for the particular crime. Except for those crimes which impose absolute liability (that is, the commission of the offending act, even without a requisite culpable mental state, is, at times, sufficient to impose criminal liability), a culpable mental state is an essential element of the crime. “Elements” of a crime are those things, which added together, make up the offense. They are those constituent parts of a crime which must be proved by the prosecution to sustain a conviction. In very simplistic terms, in order to convict one for murder, for example, elements of the crime include, the requisite culpable mental state (that is, the intent to kill), along with the act of killing. Both must be proved for the prosecution to earn a conviction.Legal insanity then, is incapacity to know your act was wrongful. And the consequence is that, in lacking the mental capacity to know your act was wrongful, you cannot be held to account. Bear in mind though, that in most instances, a verdict of “not guilty by reason of insanity” is not a free ticket home. At least as to serious offenses, the finding usually buys the accused a long cup of coffee at one of the state’s hospitals for the criminally insane rather than a cold one in his or her backyard. Perhaps, too, it is worth considering that the true finding should, at least at times, be “guilty but insane.” Would this not reflect the truer circumstance, in appropriate cases, and afford the victims of the acts of the criminally insane, more closure for their loss?Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He can be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” He can be reached at 926-4461 or at robbins@colorado.net.Vail, Colorado


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