Vail Daily column: Guilty but insane? |

Vail Daily column: Guilty but insane?

Rohn K. Robbins
Vail Law

Words matter. Concepts matter, too. Even, sometimes, when the outcome is the same.

As you no doubt know, the Aurora shooter trial has begun, and the case brings one such concept to mind. By the way, it is my policy, never to name the shooter in mass killings as the focus should be, instead, on the victims.

In any event, the alleged shooter in the Aurora theater killings has pleaded “not guilty by reason of insanity.” What does this mean and, perhaps equally importantly, what does it suggest?


Let’s first define “guilt.”

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“Guilty” at law means having confessed to or been found blame-worthy or culpable of having committed a crime. It means being devoid of innocence. An individual is guilty at law if he confesses to a crime or is found responsible for a criminal offense. This is neither quite the same as “innocence” or actual guilt. There are too many cases to name where an accused was in fact not guilty of a crime but was found to be so and as many, if not more, where one was in fact guilty of a crime but found not to be so. Ours is an imperfect system. Moral guilt or actual guilt is not the same as legal guilt. In a similar way, one is never proven innocent; the best the system can offer is “not guilty,” which leaves the moral standard aside. Not guilty means the evidence was insufficient to prove guilt and nothing more.

What then of the “insanity defense”? What of pleading or being found not guilty “by reason of insanity?” What does it mean?

One thing it does not mean is that the accused did not commit the act of which he is accused. Instead, “not guilty by reason of insanity” is a defense to being held criminally culpable. It is a plea entered before the court by a person charged with a crime who admits the criminal act but whose attorney claims he was so mentally disturbed at the time of the crime that he lacked the capacity to have intended to commit the crime.


Let’s pause a moment and take a quick look at “capacity.” Capacity logically means “ability.” To have capacity, one must have the ability to do something — in this context, the soundness of mind to understand one’s actions. If one is legally insane, he lacks the capacity or ability to be accountable for his actions. That then is the “nut” of the insanity defense. “Yes, he committed the act, but he lacked the capacity to appreciate or understand his actions.” Therefore, the reasoning goes, he should not be held accountable and should be found not guilty on these grounds.

Such a plea requires the court to set a trial on the issue of insanity. A finding of insanity will result in a verdict of “not guilty,” but, if the condition still exists, it may result in incarceration in a mental facility for the criminally insane or confinement in a mental hospital. If the insanity no longer exists (was temporary insanity), the judge has the option to require some psychological therapy or, at least in theory, could release the accused back out into the world. As a timely example, think of President Ronald Reagan’s would-be assassin, who, 34 years after the attempted killing, spends half his time at his mother’s Virginia compound and who is petitioning the court for his full release, having now been “cured” of his disease.

By the way, not guilty by reason of insanity is not the same as one being insane at time of trial and thus incompetent to stand trial, pending the accused’s recovery (during which time the defendant is confined to mental facility).

There has been much comment on the insanity defense, in part at least, because it isn’t satisfying. The accused did it but will not be held accountable. This simply doesn’t resonate with our sense of right and wrong. If someone committed an act (usually a heinous act to invoke this extreme defense), should he or she be found legally culpable instead of blameless?

So what option is there? Should one who is truly unable to appreciate what he has done be subject to conviction? Should someone really and truly crazy be punished in the same way as one who is simply mean or angry or vindictive? What if the Aurora shooter was so mentally disturbed that he thought that he was shooting zombies instead of someone’s brother, sister, father or daughter? Would that be justice?

In some jurisdictions, there’s a sort of middle ground: “guilty but insane” (or “guilty but mentally ill”). Guilty but mentally ill is different in that it acknowledges the wrongful act but equally acknowledges the defendant’s impaired mental state. Is it perhaps more satisfying to a survivor or a victim’s family member to know the law found the person guilty?

In the states that have it, the guilty but mentally ill plea is most common when there is clear evidence of either a lack of the defendant’s appreciation for the wrongness of his actions or a lack of understanding of the consequences of his actions but not both. Because defendants who meet both of these criteria often opt for the not guilty by reason of insanity plea, the guilty but mentally ill plea is typically reserved for those who only meet one criterion. The guilty but mentally ill plea resembles a standard guilty plea but denotes the fact that the defendant is in need of mental health treatment in addition to punishment for his or her crime.

And the punishment, in fact, is different.

Supporters of the guilty but mentally ill plea claim that justice is better served by this trial outcome than in not guilty by reason of insanity cases. They claim this is true because inmates who were found guilty but mentally ill are held accountable for their crimes even after they are restored to mental health, unlike individuals who were successful with the not guilty by reason of insanity plea.

A minority of states have the guilty but mentally ill plea available. One must question why Colorado is not yet among them.

Words matter. Concepts matter, too. And justice truly matters.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, or

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