Vail Daily column: Plead guilty, but insane? |

Vail Daily column: Plead guilty, but insane?

Rohn K. Robbins
Vail Law

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

The Aurora shooter case brings one such concept to mind. By the way, it is my policy never to name the shooter in mass killings; the focus should be, instead, on the victims.

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

Let’s first define “guilt.” “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 cases 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?

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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.

Capacity logically means “ability.” To have capacity, one must have the ability to do something — in this context, 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.

Such a plea requires that the court 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. 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.

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, 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/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” (GBMI) 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 GBMI 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 their actions, but not both. Because defendants who meet both of these criteria often opt for the NGRI plea, the GBMI plea is typically reserved for those who only meet one criterion.

And the punishment, in fact, is different.

Supporters of the “guilty but mentally impaired” plea claim that justice is more 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 GBMI 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 of counsel in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. Contact Robbins at 970-926-4461 or

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