Crimes are comprised of action plus intent. We call the intent element, a factor the government must prove beyond a reasonable doubt, mens rea. Intent, like any other element of the offense must be proven beyond a reasonable doubt. In our society, we celebrate ordered liberty and chafe against a disordered mind, and therefore we presume sanity for all criminal defendants placing upon them the burden of demonstrating insanity or diminished capacity to form intent.
Without seeking to do so, the recent case of Metrish v. Lancaster, SCT Docket No. 12-547 (May 20, 2013) exemplifies that courts are comprised of humans and humans are uncomfortable with the disorder of mental illnesses. Mr. Lancaster was a Detroit police officer with a long history of mental illness who killed his girlfriend. He set out the defenses both of insanity and of diminished capacity; despite his defenses, he was convicted of murder. After his conviction, the case was reversed for unrelated reasons. By the time of his retrial, the Michigan legislature and courts had eliminated the defense of diminished capacity, the only defense Mr. Lancaster intended to pursue at his second trial. The change in the law left him with the possible affirmative defense of insanity but no other avenue by which to attack the mens rea element of the offense.
Framed within the brackets of Bouie v. City of Columbia, 378 U.S. 347 (1964) and Rogers v. Tennessee,532 U.S. 451 (2001), Mr. Lancaster argued that he should have been entitled to the diminished capacity defense as a matter of due process of law. Briefly, Bouie was a Civil Rights era case where the offenders were involved in a peaceful sit-in arrested for trespass when they did not leave the premises. The language of the trespass statute only mentioned entering (which the protesters were permitted to do) and not remaining (which they were not). At the time of the arrest the only notice provided as to the crime of trespass was the statute. Almost 2 years after the arrest (but apparently before trial), the South Carolina courts ruled that the trespass ordinance covered both entry and remaining on the premises. The retroactive application to the Bouie defendants, however, violated due process as the Bouie defendants could not have been on reasonable notice that they were breaking the law since the plain language of the statute did not appear to cover the activity. In short, the activity of the defendants was ordered and the crime as defined by the South Carolina courts was disordered. The defendants were the good guys.
Rogers, on the other hand, involved a homicide. At common law, a homicide could not be charged under Tennessee law unless the death occurred within one year and a day of the assault. In Rogers' case, the victim lingered for 15 months, thus the defendant claimed the common law defense of a year and a day rule. The Tennessee high court invalidated the antiquated rule and found that the government had proven Rogers guilty of the crime regardless of the date of death. The Supreme Court agreed; application of this change did not deprive Rogers of due process. In short, the crime as understood by the Tennessee Courts was ordered and the conduct of the defendant was disordered. The defendant was the bad guy.
This backdrop predicts the outcome of Metrish v. Lancaster; his due process argument would fail since it was not based upon notice, as was Bouie, it was based on the state's power to define crimes and defenses as in Rogers. In a terse and almost exasperated unanimous opinion, the Court explained that the defense of diminished capacity was not firmly rooted in Michigan jurisprudence...and was not widely accepted in all of the states... and therefore the judicial decision to eliminate it - and that retroactive application to Mr. Lancaster - did not violate due process.
That ruling avers that despite the requirement of the state to prove every element of an offense beyond a reasonable doubt, if a challenge to an element of the offense was not "firmly rooted" in state law, the state can bar such a defense without offending due process of law. Even the Court cannot really believe that to be true because defendants have the right to demonstrate that the state has not proven its case beyond a reasonable doubt. Mens rea is an essential element of the offense; particularly with the presumption of sanity, a defendant should be entitled to present all proofs to demonstrate a lack of sanity.
In reality, what the Court said in Metrish v. Lancaster was that the Michigan courts did not unreasonably apply Supreme Court precedent in retroactively applying the court decision eliminating a defense within the meaning of the AEDPA. The AEDPA, of course, is a legislative directive that so limits federal habeas claims as to infringe upon the First Amendment right to petition the courts. The ruling in Metrish v. Lancaster almost hints at the idea that, if the Court were presented with the specific issue of due process as it relates to mental illness and mens rea, say in a petition for certiorari, the ruling might be different.
Or, maybe not; mental illness upsets order in the court. Although not mentioned in Metrish v. Lancaster, in Clark v. Arizona, 548 U.S. 735 (2006), a case that came in on direct certiorari, the Court determined that everything related to the insanity defense would be in the hands of the states and thus almost seemed to eliminate a constitutional due process review. That is, Arizona had eliminated a portion of the definition of insanity making the claim harder to prove. The defendant argued that this reduced the burden of proof for the government, but the Court did not seem to mind. The decision explored the history of the defense and its application throughout the states. "[N]o particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice." Id. at 752. Clark - a profoundly well-reasoned opinion - is a beautiful, if sad, rendition of federalism and the power of the state to define its own crimes and punishments.
It is beautiful for its clarity and purity of federalist notions of state powers, but sad because given the discomfort society has with mental health defects, the Court could have provided a protective layer of due process or equal protection under the law to shield those with mental health defenses from the vagaries of mob rule. While Blackstone's commentaries note the necessity of a "vicious will" to effect a criminal offense, the whole notion of a guilty mind almost seems to be a relic of the past.
The insanity defense and all of its permutations seems to have its origins in the matter of Mr. M'Naugton. In 1843 Scotland, his defense at trial for shooting civil service worker was that he was persecuted by aliens. Testimony at trial was one-sided in favor of the defense theory of insanity; even the prosecutor's closing was half-hearted. The jury was told that if it found Mr. M'Naugton insane he would be properly cared for. They accepted that determination, found him insane and he went on to live another 20 some odd years in a state run asylum.
The M'Naugton case itself is fascinating not only because of its contribution of the insanity defense but for other reasons. For one, the gunshot did not actually kill the civil servant; medical treatment did. Additionally, one author has speculated that M'Naugton was a political case and that the insanity defense discredited his political views; on the flipside of that observation is speculation that M'Naugton was a paid assassin who feigned insanity when he missed his intended target so as not to reveal the conspiracy. Finally, the verdict so upset the public and the Queen that the House of Lords took the unusual step of posing questions to the courts regarding crimes as they relate to people suffering from delusions. From its earliest days, mental illness as a reason to negate any element of a criminal act has made people uncomfortable.
And, that is okay. Horrible acts should make everyone uncomfortable regardless of the circumstances. Our courts have been long on punishment and short on mercy especially in matters of mental frailty. We are afraid of those who cannot seem to conform their behavior to norms society has created; we are terrified of those whose behavior is violent, unpredictable and devoid of reason. We crave the ability to find order in chaos which mental illness prohibits.
Unlike the jury in M'Naugton's Case, modern juries do not learn that if they find the offender insane, he will be cared for, protecting himself and the community from his random and incomprehensible acts. After designing a system dependent on sanity where we deprive people of liberty when they act with evil intent, we unfairly place on jurors the burden of eliminating punishment for acts that look to be heinous and criminal but for the lack of intent. Few of us would be able to do that. Courts and legislatures need not restrict and minimize mental health defenses because most mental health defense cases will become guilty verdicts. There is no place for mental disorder in a system created for order. Thus, before Metrish v. Lancaster, in Clark, the Court removed itself from the discussion on mental health defenses and relegated the policy decisions to states.
Insanity, even in states that have the broadest rules for its definition, and diminished capacity or diminished responsibility in the few locations where available as a defense, are very difficult to demonstrate. Even if told that those insane or of diminished capacity will be properly cared for (i.e. away from society but just not in a prison environment), and that care will cost less to the taxpayer, the truth is that most juries still would convict. At base, despite the protections of constitutions and rule of law, humans have not evolved so much that they possess more mercy than revenge. Which is a shame because our prisons are the madhouses of the 19th Century with no proper care and even less concern for the mentally ill inmates. Out of their minds but out of our sight.
While Metrish v. Lancaster mentions that Mr. Lancaster had been a police officer, there is no mention of the onset or derivation, or even the name of the illnesses from which he suffered; it makes no statement on whether treatment was available to him for him to keep his job or whether institutional barriers prevented him from obtaining the care that he needed. And, that was not relevant to his case: he simply argued that taking away a defense available to him at the time of his actions violated due process of law. The Court dutifully kept its answer limited to the question; in fairness it is not the Court's role to remind states that eliminating mental health defenses results in prisons full of mentally ill inmates. Without proper guidelines that no one wants to create, the mentally ill, who did not choose to be sick, will be found guilty of criminal acts if they harm others.
On this Memorial Day, when we honor those who sacrificed and died so that we may be free, we might recognize all of those servicemen and women who return terminally altered in both mind and body from their experiences in places most of us could never imagine. Some come back to a home that seems unfamiliar and struggle to find a way to navigate through a life they barely recognize. We would do a deep honor to our veterans who are still with us if we radically changed our perception and our approach to mental illness not only in relation to their experience but to crimes and misdemeanors, and to society at large.
The Memorial Day remembrance began, years after the war ended, to show respect for the sacrifice of Civil War soldiers. The nation mourned with such prolonged grief (a grieving period that today would be classified as a mental illness) that it needed a place to put the pain of 700,000 deaths; it needed to stop the persistent ache of a country's broken heart. Unlike today's military ventures, that war was very much a shared experience. Today, we collectively mourn the sacrifice of lost men and women, but it is less personal to most Americans.
As we lay wreaths and place flags near tombstones, we could, however, esteem our returning veterans by recognizing that illness and injury is not shameful. With so many in our military committing suicide after serving valiantly, we owe them and ourselves a focused effort to embrace the difficult journey of facing mental illness in all of its permutations. Mental illness is not a rare occurrence; 1 in 4 adults, close to 60 million people, suffer from a diagnosable mental health disorder every year. Most will not self harm and fewer will harm others. But those who do will likely be convicted of crimes they could not, realistically, have the intent to commit.
Not just in memory of our fallen but in honor of those who survive, we might revisit mental health as it relates to war and peace and justice in our times. Regardless of what juries will do with the information, all defendants suffering from mental illness should have the opportunity to raise every possible claim in their defense. The more we restrict the rights of the criminally accused, the closer we come to a police state. As uncomfortable as it makes us, we must remember that the promise of ordered liberty requires proof beyond a reasonable doubt for mental intent even when the betrayal of mental illness disorders the mind of the accused.
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