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Stabilizing insanity : a systematic revision to the insanity defense

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Stabilizing insanity : a systematic revision to the insanity defense
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Ostrom, Jason
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Metropolitan State University of Denver
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Stabilizing Insanity: A Systematic Revision to the Insanity Defense
by Jason Ostrom
An undergraduate thesis submitted in partial completion of the Metropolitan State University of Denver Honors Program
December 8, 2017
Dr. Randi Smith
Dr. Cynthia Erickson Dr. Megan Hughes-Zarzo
Primary Advisor
Second Reader
Honors Program Director


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Stabilizing Insanity: A Systematic Revision to the Insanity Defense
Jason O strom
MSU Denver Honors Program


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The Current Model of Insanity Defense Processing
As a legal term the concept of insanity throughout history has been defined by dramatically different assumptions. Insanity can be analyzed from any perspective, and this analysis can lead to widely varying conclusions for each group or individual considering the idea. The issue of creating a unifying definition of insanity is particularly difficult when the nature of insanity, and its role in behavior, is applied to the judicial proceedings of the criminal justice system, but this does not mean that a satisfying means of establishing insanity and properly identifying insane individuals is an impossible task. In the legal context, insanity relates directly to criminal responsibility (Martin, 1998). Cases in which defendants are ruled to be insane find the individual not guilty due to the specific nature of their insanity. The finding of not guilty by reason of insanity is a suggestion that the individual cannot be held responsible for their actions because aspects of a mental disorder have corrupted or distorted thought processes so significantly that the individual cannot compose their actions within the realm of appropriate behaviors as defined by society (White, 2017). Ignorance of the law may be no excuse for criminal action, but an inability to understand the criminality of a given action or an inability to refrain from conducting illicit behaviors as a result of mental illness is a suggestion that the mental illness, not the individual, is responsible for the action. What is shown in a case that finds the defendant not guilty by reason of insanity is that the defendant did in fact commit the illegal act, but they are not at fault for it (White, 2017). While the person is charged with the crime they cannot to be punished because of the societal belief that those who are not in control of their actions cannot be held responsible for those actions.
As of 2015, the Bureau of Justice Statistics reported that there were approximately 2.5 million adults held in American jails and prisons (2015). Based on evidence from historical


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analysis, it is reasonable to conclude that nearly half of all inmates have a history of psychiatric disorder or are currently presenting symptoms of mental illness (James & Glaze, 2006). Furthermore, it would seem that individuals with mental illnesses who have been found guilty of at least one felony in the past are statistically more likely to commit violent crimes in the future (James & Glaze, 2006). Statistical evidence of just how prevalent mental illness is in the American criminal justice system suggests that there is a major issue to be solved concerning the role of mental illness in criminal behavior. Furthermore, staggering figures such as these suggest that there is significant reason to believe that treatment for mental illness, especially for those in the criminal justice system, is tremendously important. While knowledge of which disorders play what role in which crimes remains unclear, what is certain is that there is a need for the criminal justice system to reevaluate the current perspective to incorporate more appropriate techniques to deal with individuals who suffer from the many forms of mental illness.
At the forefront of this issue is the nature of criminal responsibility and legal insanity.
The current criminal justice system is designed to view the majority of people as being capable of understanding the nature of their actions and capable of conforming their behavior to the typical standards of mainstream society (Berman, 2007). This means that almost all people will understand what is right and what is wrong, and most individuals will be able to know when and where certain behaviors are not acceptable. However, the insanity defense is a legal response to the idea that mental illness can alter the cognitive function of an individual to the point that they will not be able to abide by the law in the same way that most everyone else can. This legal defense has drawn public scrutiny because it is perceived as being a way to circumvent the law and to avoid responsibility for what many consider to be heinous actions (Jacewicz, 2016). In truth, the insanity defense is used in only one percent of all felony cases, and it is not successful


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in more than a mere fraction of those cases in which it is raised (Martin, 1998). Due to the popularity and intrigue involved in the high profile cases in which the plea is raised, such as the case of John Hinckley who was found not guilty by reason of insanity after he attempted to assassinate then president Ronald Reagan in order to gain the favor of actress Jodie Foster, the public has consistently shown their desire to turn further and further away from the use of the insanity defense (Jacewicz, 2016). The pessimistic view of the insanity defense has resulted in a more strict interpretation of the definition of insanity throughout the United States. Although every state has different guidelines and standards, each state has devised a system that is believed to accurately assess criminal insanity, the role of mental illness in the life of the defendant, and the effect made on behavior by the illness.
Given that there are so many different interpretations of insanity throughout the United States, it is hard to pinpoint an exact definition of legal insanity. By federal regulation it has been made clear that mental illnesses, as they are individually outlined in the Diagnostic and Statistical Manual, are not consistent with legal insanity (White, 2017). In other words, there is more required of the defense attorney in order to prove legal insanity than the simple proof of diagnosis of a mental disorder. Mental illness does seem to be a necessary component for legal insanity, but which manner of illness or symptomatic expression is not established. The reality of the current situation is that any mental distortion can feasibly be used as a defense regardless of whether or not it is an established psychiatric disorder. Naturally, exceptions for voluntary intoxication and antisocial behaviors including kleptomania, pedophilia, pyromania, and so on do exist because they cannot justifiably relieve an individual from responsibility for their actions (Schouten, 2012). The deciding factor on whether or not a plea is accepted by the jury is the interplay of the various factors surrounding the case. While the jury determines insanity, it is the


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responsibility of the defense to provide the evidence necessary to sway the minds of the jury while the prosecution refutes the claim. The insanity defense creates a case in which there is a debate not of innocent until proven guilty, but rather sane until proven insane.
Through analysis of previous cases in which the insanity defense has been involved, the factors contributing to the success or failure of a defendants claim of insanity can be brought to light. The most influential aspects of any insanity claim are those that revolve around the symptoms or the disease declared and its apparent severity. Typically, the more severe symptoms and the most physiologically evident diseases have the greatest likelihood of being successful (Schouten, 2012). However, simply having a severe and biologically evident disorder is not enough. The defense must show that the symptoms, or the disorder, have altered the perception of reality or has affected the individuals ability to control their actions. These final two aspects of the defense relate directly to the most stringent legal interpretation of the insanity defense. Each state can have its own standard by which insanity defense claims are evaluated, and any symptom or illness proposed by the defense will have to sufficiently explain how consciousness was altered at the time of the crime in order to create a departure from normal and appropriate behavior (White, 2017).
The medical director of the American Academy of Psychiatry states that the most common mental illness claimed for the insanity defense is schizophrenia while other disorders presenting psychotic symptoms are not too far behind (Martin, 1998). An assessment of the state level statutes on insanity reveal why this disease, and those like it, are so common. For example, the MNaughten rule is not only the most well-known standard by which insanity pleas are measured, but it is also the most common as it is applied to cases in the majority of state legislatures. This rule, at its core, establishes a debate on the grounds of Mens Rea (Feuerstein


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et. al., 2005). Mens Rea is one of two parts of any crime. The first part of any criminal action is Actus Reus, or the act that is illegal, while Mens Rea is the criminal mind or the deliberate enactment of a criminal act, or criminal intent. Mens Rea implies that not only did the person commit a criminal act, Actus Rea, but also the individual either intended to commit a known criminal act or had the ability to know and understand that an act was criminal before the acts commission. To suggest insanity under the standard of the MNaughten rule is to suggest that the defendant, at the moment of the crime, was incapable of knowing or understanding that the act was criminal. In essence, the insane individual under the MNaughten rule must be incapable of knowing right from wrong as the direct result of a mental disorder or defect (Feuerstein et. al., 2005).
The mass appeal of the MNaughten rule is not meant to suggest that it is the only viable test for criminal insanity. In fact, there are several other rules used by the remaining state legislatures that have served as effective tests for criminal insanity either as stand alone principles or in conjunction with other insanity defense measures. Some of these other rules include the irresistible impulse standard and the Durham rule. The irresistible impulse standard is as simple as its name implies. It relates to the ability of an individual to exhibit control over their actions at the time of the crime (Feuerstein et. al., 2005). In simple terms, if the individual felt so compelled to perform a criminal action that they would still have committed the crime regardless of the clear presence of a police officer or other circumstances creating the certainty of apprehension and punishment then the action would be said to have been caused by an irresistible impulse. On the other hand, the Durham rule is a more broad interpretation of insanity that states that no one should be held responsible for a crime that was the product of their mental illness (Jacewicz, 2016). This means that if the defense can present sufficient


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evidence to suggest that the crime was a direct result of mental illness, meaning that the mental illness was responsible for the crime, then the defendant should not be held responsible and cannot be punished. Despite the differences between these rules the American Law Institute has pulled together the foundational aspects of each rule to better define insanity in the legal context. The American Law Institute indicates that insanity exempts individuals from punishment when the presence of a mental disorder diminishes the capacity to appreciate the criminal nature of their conduct or limits the ability to conform to societal expectations for conduct (Feuerstein et. al, 2005).
Though many different rules and standards exist for the insanity plea and even though there are different interpretations for each of those standards, there is reason to believe that a more objective, reasonable, and understandable consensus on the definition of insanity is possible. Evaluating the current standards for the insanity defense and analyzing the interpretations of others who have assessed the insanity defense reveals several key qualities that exist in each of these different rules. First, and perhaps the most obvious, is the requirement for a verifiable mental impairment. In blunt terms, there can be no insanity where there is no illness. This is true despite the fact that mental illness does not imply insanity. Instead, mental illness is merely a piece of a puzzle that cannot exist without some form of evident cognitive abnormality (White, 2017). Furthermore, this abnormality must be accompanied by a symptom profile that in some way results in an altered state of mind. Not all mental illnesses are created equal. Some symptoms of mental illness will have no impact on an individuals reasoning skills or behavior and as such will have no bearing on a persons sanity, in legal terms, no matter how severe the symptoms may be. Consistent with each of the rules stated previously, the symptoms of the disorder must be powerful enough to create a strain or limitation on the individuals ability to


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make appropriate decisions. This could follow the MNaughten rule in the conceptualization of right and wrong, the conduct conforming standard of the irresistible impulse test, or the ability to attribute an action to the mental illness as recognized in the Durham rule. What is consistent within each of these rules, despite their differences, is that the nature of a given mental illness alters the ability of the criminal justice system to hold the individual criminally responsible for their actions as a direct result of a mental impairment.
The Current State of the Insanity Defense
The current system is flawed. Although the insanity defense has evolved over the years as a result of the ever-changing public interpretation of insanity and mental illness, there is still reason to believe that it is not as effective at finding truth, through objectivity and reasoning, as it should be. Furthermore, the current system does not take into account the needs of each party involved. The criminal justice system must process cases that involve this defense, and in this goal the system is effective. However, there are the needs of the adjudicated individual and the needs of the victims and their families that are not being met sufficiently.
The current model of the insanity defense follows a consistent path where the defendant can either be found guilty or they will be found not guilty by reason of insanity (Martin, 1998). Some states have admitted that this process is not entirely effective by establishing a verdict of guilty but mentally ill, or GBMI, that accounts for the role of mental illness but does not relieve the defendant from responsibility for their actions (White, 2017). This verdict is able to make the suggestion that the defendant is both in need of treatment for the mental illness and is in need of incarceration as punishment for their crime. As such, this verdict can provide the victims and their families the closure and feeling of justice that can be missed when a not guilty by reason of insanity verdict is given. The victims, the public, and the criminal justice system believe that


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when a crime is committed, punishment and retribution should accompany that crime. This is based on the normative standards established as a value of the American people who believe that all individuals are morally responsible for their actions and should be held accountable for them (Berman, 2007). This is why the public reacts so strongly to not guilty by reason of insanity verdicts. The public believes that someone should be held responsible, meaning that some person and not a mental disorder should be held responsible, and the current system has left a bad taste in the mouths of those who seek a sense of justice (Jacewicz, 2016). This is because the current system does little to provide a consistent definition of insanity and refuses to accept or develop a more reasonable solution for the ambiguity of these situations. The GBMI verdict provides the opportunity for the individual who committed the crime to be held responsible for their actions while still accepting the fact that mental illness was a major component in the development of the event (Berman, 2007). Those given the GBMI verdict are treated for the disease that undeniably played some role in the commission of criminal action and the individual is also punished for their inability to hold their behavior within that which is socially and legally acceptable.
Seeking the insanity defense is an admission of guilt in that the defense does nothing to refute the claim of the defendants role in the commission of the act, but instead suggests that the defendant was not responsible for the act (White, 2017). This means that the individual will either be found not guilty by reason of insanity or they will be found guilty, there is no gray area to cover a situation where mental illness played a role but cannot be held responsible. A GBMI verdict provides a gray area to the insanity defense allowing mentally ill defendants the opportunity to establish mental illness as a factor in the case and possibly in the commission of the criminal act thus mitigating the circumstances and opening the door for appropriate treatment


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for the apparent mental disorder. The intent of the GBMI verdict is a suggestion that the jury believes that the defendant would not have been as likely to commit the act had mental illness not played such a role in the event, however, the jury also believes that the defendant should be held responsible for the act due to the impression that the mental illness should not have debilitated to defendant enough to be the sole cause of the criminal act. To effectively employ the GBMI verdict the criminal justice system must be charged with the responsibility of providing effective treatment options for mentally ill offenders.
The criminal justice system does participate in the provision of rehabilitation programs that include certain mental health care options. However, the current standard of psychiatric care in the United States criminal justice system is not sufficient to make the GBMI verdict a reasonable solution to the issues cited by those opposed to the structure of the insanity defense. Effective treatment options are those that are evidence-based and can be reasonably assumed to keep the illness from playing such a significant role in the defendants future, specifically as it pertains to the likelihood of recidivism. Considering the current, and seemingly ubiquitous, nature of mental illness within the criminal justice system and the lack of programs that have displayed reasonable amounts of success at treating the underlying aspects of the typical criminal profile achieving positive results from treatment within the criminal justice system cannot be so easily expected (James & Glaze, 2006). In order to effectively treat GBMI convicts and the mentally ill inmates who are already within the criminal justice system, major changes would have to be considered by the United States government.
Clear signs and evidence can be found to indicate and highlight the influence that mental illness has over the act of committing a crime for those are dealing with some form of mental disturbance. The current legal system is based on rules like the MNaughten rule, the Durham


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rule, and the irresistible impulse standard, but these rules do not effectively account for the nature of mental illness and the role that it plays in the actions of a given individual. As such, there is reason to believe that it is necessary to create a shift in procedure that allows the criminal justice system to appropriately evaluate the mentally ill in order to lead to more objective judgments of mental illness and criminal responsibility. By making this change, the criminal justice system of the United States would be able to limit the errors created within the current insanity defense paradigm, it would find answers based on more informed interpretations of the evidence presented, and it would be able to have an impact on recidivism rates as a result of the increased number of appropriately sentenced and treated inmates. A modified version of the current system that employs the techniques to establish the guilty but mentally ill finding would be a more rational means to evaluate criminal responsibility and treat the underlying causes of criminal action. Determining criminal responsibility, legal insanity, and the role of mental illness on a complete understanding of mental illness supported by evidence from neurological imagery and abnormal biological functionality viewed through the lens of the traditional legal standards for insanity would allow judges and juries to come to a more accurate and tenable conclusion as to the role of an individuals mental disorder in the commission of a criminal act.
The Psychological Aspect of Insanity Defense Processing The criminal justice system must evaluate insanity and the role of mental illness in criminal action in the same manner in which the psychiatric community assesses disease. Regardless of the legal systems insistence upon separation from the psychological nature of insanity, the findings on an insanity plea are inherently a claim of disorder and illness severity. The ruling on an insanity plea expresses a statement, on behalf of the legal system, to the nature and quality of the individuals mental state. Whether the defendant seeking the insanity defense


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is found to be guilty, guilty but mentally ill, or not guilty by reason of insanity, the legal community is making a statement about the evidence, the severity, and the influence that mental illness has in the life and behaviors of the defendant. With this in mind, it would seem to be apparent that a shift to a more systematic and scientific approach to insanity is the most appropriate course of action. This would mean that the criminal justice system would have to amend traditional legal procedures to help jurors understand mental illness and the role it can play in behavior. The steps involved in this form of investigation would yield more objective results and accurate conclusions based on consistent and verifiable data. Employing consistent and organized interpretative methods to establish the basis for the effects of mental illness according to the standards of the MNaughten rule, the Durham rule, the irresistible impulse rule, and the concept of Mens Rea would improve verdicts in cases where the insanity defense is involved because they would be based on more than the traditional methods of debate, expert testimony, and jury deliberation. The new standard would be based on these same factors as the current model through incorporation of the current legal standards, but it would also include more objective, verifiable psychological and biological understandings that can be used by the jury when attempting to understand the unique circumstances of a given case.
The importance of altering the current paradigm is evident when exploring the current standard on psychological impairment. As it stands, the legal system will accept almost any mental disturbance as grounds to invoke the process of the insanity defense (Schouten, 2012). Not only does this open the door for frivolous use of mental illness as a mitigating factor, but it also invites the negative public view on the insanity defense. Instead, the criminal justice system needs to close this loophole to only allow debate about an individuals sanity when the defense can provide sufficient evidence of a well-established mental illness or symptomatic construct.


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This syndromatic perspective adresses two major problems with the current insanity defense: the objectivity of the claim of insanity and the high risk of recidivism for mentally ill offenders.
Incapacitation refers to the ability of the criminal justice system to use coercive force to restrict the behavior of an individual (Seigel, 2015). The criminal justice system is charged with maintaining the safety of the communities they serve, and with that in mind, incapacitation of dangerous individuals is one of the fundamental duties of the American criminal justice system. However, one of the other foundational goals of the criminal justice system is supposed to be rehabilitation (Siegel, 2015). The incarceration period is best utilized when it provides offenders with the means to rehabilitate and receive treatment for any issues that they may be facing.
When the insanity plea is accepted, the psychiatric community takes on the process of incapacitation and rehabilitation (White, 2017). During this time period, the psychiatric community is responsible for the rehabilitation of the mentally ill offender, and the offender is not to be released until there is sufficient evidence to suggest that the individual is no longer a threat to public safety. This is why it is so important for the illness and the symptoms to be understood fully before sentencing. If the illness or presenting symptoms of an individual are not understood before sentencing then the possibility for successful treatment and rehabilitation will not be as strong, thus keeping the individual in a psychiatric facility would take time and resources away from the rehabilitation efforts of other patients who have a greater likelihood of being successfully treated. The cited disease or symptoms in an insanity defense must be understood and processed properly because it is the only way in which the goal of rehabilitation can be accomplished. Placement in a psychiatric facility or a treatment program is meaningless if there is no ability to expect a positive outcome of treatment. The current system, one that is designed around an insanity defense that allows for any mental condition and only accepts a


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verdict of complete guilt or complete lack of guilt on the grounds of insanity, does not create sufficient faith in the use of the criminal justice system as the means for rehabilitation. Seldom can this binary perspective provide a true answer with effective sentencing outcomes when it does not account for every possible instance: guilt without mental disorder, guilt with present mental illness, and no guilt as a direct result of the incapacitating nature of mental disability.
Ensuring that the jury is given the ability to fully understand the nature of the illness and presenting symptoms there can be a greater level of objectivity and understanding in the outcome of a debate over the defendants sanity and the role of mental illness. Currently, when the insanity defense is brought up in a case under the typical system there are no expectations for the disease or symptom profile (Schouten, 2012). Any individual can claim that any circumstance altered consciousness enough to directly result in the criminal behavior, but this is a mistake on the part of the legal system. In the past the courts have admitted to this mistake through the creation of legal precedence that have led to the exclusion of things like voluntary intoxication, antisocial behavioral traits, and crimes of passion (Schouten, 2012). To ensure that this issue does not continue to periodically arise the legal system needs to adopt a clearer and more consistent means for establishing mental illness.
Requiring that any mental defect claimed in a court of law be an established and cataloged mental illness would force the defense to show evidence that the defendant has an illness that is consistent with the established, scientific understanding of the disorder. In effect, this change would mean that the defendant would have to fit the mental illness profile of the disorder that may or may not have played a role in the crime committed. Complete analysis of these factors would lead to more objective interpretations and verdicts on the presence of mental illness, but most importantly, by requiring the defense to establish insanity based on recognized


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symptoms or mental disorders there would be fewer questions as to what effect the disorder could have or what role it would play in the commission of an illegal action do to the greater understanding of the mental disorder and its symptoms. Although the scientific understanding of cognition and the results of cognitive abnormalities is constantly evolving based on new and emerging evidence and the diagnosis of an illness can be somewhat subjective there are standardized interpretations of known illnesses and symptoms (Comer, 2015). Regardless of the crime being committed, the current understanding of mental disturbances can be applied to any case involving the insanity defense to help create a more accurate depiction of the influences involved in the act. Only by following the course of an established disease or symptoms can the courts find a more rational conclusion about the role of cognitive abnormality.
When the two psychological factors are combined the court system is left considering diseases that are established within the medical and scientific communities with the ability to be effectively treated, managed, or cured. This, of course, means that there is a finite number of mental disorders that can be considered when attempting to produce an accurate verdict about the nature of the effect of the illness on criminal responsibility and whether or not the specific mental disturbance, rather than the individual, is to blame for the crime that was committed. While the truth is that this psychological standard would significantly limit the scope of the insanity defense as a means to identify criminal responsibility it recalls the idea of a guilty but mentally ill finding as an effective tool for the criminal justice system. Applying this psychological standard looks much different when there is a third option for the final verdict of a court case. Insanity can remain a concept defined by the rules of criminal intent, the standards of the knowledge of right and wrong, the ability to resist an impulse, and the ability to attribute the production of the crime to the mental illness. However in this case, not guilty by reason of


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insanity would need to be shown as a mental impairment that robs the individual of the ability to conform their actions under one, if not all, of these standards. GBMI verdicts require individuals to serve out their sentence due to the fact that juries still find them criminally responsible for their actions (Berman, 2007).
The idea that the defendant can still be held responsible for the criminal action is the factor that separates GBMI from insanity. Mental illness, as evident by the millions of American citizens living with mental illness who engage in no illicit acts, does not automatically cause illegal activity. As such, a claim suggesting that mental illness played a role in the crime does not inherently imply that the mental illness was responsible for the conduct of the person who committed the crime. In order to establish criminal responsibility the nature and effects of a mental disorder must be debated with analysis of the evidence of the mental illness, its known effects, and ultimately the nature of the individuals understanding of the act and the intent behind it (White, 2017). This means that the mental disorder or the presenting symptoms must be defined and established so as to create a clear understanding of what these symptoms are, the symptoms must have known expectations for how they might impact behavior, and the symptoms must be significant enough to impair cognition if insanity can be a reasonable conclusion. If these conditions are not met, then the only verdict that can be found would be one that places criminal responsibility on the individual who committed the crime. Whether this is a simple guilty verdict or a guilty but mentally ill verdict depends on the ability of the defense to provide evidence of a disorder.
The guilty but mentally ill verdict is intended to be used as a verdict that ensures that the defendant is given the proper rehabilitation programs for their specific situation when a significant mental illness is evident (Berman, 2007). Different mental disorders have different


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treatment needs and far too often the traditional criminal justice system has not been able to accurately account for these difference by providing effective treatment and rehabilitation programs. Utilization of the GBMI verdict would suggest that the individual who committed the crime is still responsible for their behavior, but the GBMI verdict is also a concession on behalf of the court system suggesting that there is sufficient reason to believe that the mental illness may have played a significant role in the circumstances that led to the crime. The criminal justice system has a duty to treat the underlying mental illness because of the effect that it may have on criminal activity. If the illness may have influenced the factors leading to one criminal act then it is reasonable to assume that the illness could lead to another criminal act. In order to maintain the safety of the public as well as to provide the defendant with a true opportunity to successfully rehabilitate, the mental illness must be treated and the symptoms must be managed so that they will not have such influences on behavior in the future.
The Role of Specific Symptoms and Disorders
Insanity, in the legal context, should be evaluated similarly to the way in which disease is considered in the psychiatric community. The current criminal justice system does not allow a defendant to be found legally insane without the presentation of some form of mental disorder (Ringer & McCormack, 1977). Considering the verdict structure of the process of evaluating insanity, which results in either incarceration or treatment based on the understanding of the presenting illness, it is an inherently diagnostic process. The defendant will either be found to have an illness that can reasonably be held responsible as the cause of the criminal action due to the evidence suggesting its effect or the defendant will be found guilty because the illness will have been deemed insufficient to be the cause of the action. Since the process makes a claim on the nature and quality of the mental illness and since the result of the verdict dictates the


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treatment received by the individual who is more than likely suffering from some form of disorder regardless of if that disorder caused the criminal act the current methods of evaluation allow for too much subjectivity. Admittedly, there is reason to allow for subjective analysis on the evidence presented because it allows the jury to interpret the circumstances and develop a unique understanding of the defendants mental health, its influences on behavior, and its influences on the criminal actions involved in the case (Schweitzer & Saks, 2011).
The use of expert witness testimony from qualified psychologists and psychiatrists is a reasonable and necessary aspect of defendant evaluation as well. These individuals are highly trained in their field and are better suited than anyone to evaluate the nature and influences of an individuals mental disturbances (Schweitzer & Saks, 2011). However, the nature of the role of these experts is also subjective. The role of an expert witness comes with a strikingly high potential for the influences of bias. This is not to say that the opinions of these experts are inherently biased, in fact, the suggestion is just the opposite. The justice system is designed to reach conclusions that are justified based on the evidence presented. With that in mind, prosecutors and defendants both utilize the sources of evidence that best suit the case that they are building. As such, if the prosecutor can find an expert that supports the argument being made they would be willing to exclude other experts in favor of the one that agrees with their argument. The same goes for the defense. The use of specific experts does not suggest infidelity in any way, merely that the presenting symptoms and disorders within abnormal psychology can sometimes be subjective and open to interpretation. While one psychologist may see a cluster of symptoms and see no conclusion other than one specific disease another psychologist may view that same cluster and recognize that a specific symptom is highlighted and may be influencing


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the presentation of the others thus this psychologist would come to a different, yet equally valid, conclusion.
Considering the characteristics of the current forms of evidence from the psychological community, the criminal justice system must outline clear, well-defined, and consistent standards by which defendants can be evaluated for the influences of mental illness and cognitive disorder. This means that in addition to expert witness analysis and testimony from qualified psychological and psychiatric professionals there must be objective rules and guidelines that provide a consistent outline for and a consistent method for interpreting evidence of an individuals sanity. The first step in creating these objective standards is to categorize the disability being claimed by the defense.
The Victorian Law Reform Commission of Australia has recognized the issues involved with the MNaughten standard and has taken steps to help change their countys doctrine to reflect the need for reconsideration of this standard by establishing categories of mental illness or mental impairment that include psychotic illness, depression or depression related illness, IQ related illness, personality disorder, and alcohol or drug abuse (Bennet & Hacker, 2011). The United States judicial system would do well to create categories of their own that would define the quality of a mental impairment being claimed in an insanity defense. Requiring the defense to provide a statement of the type or quality of the mental impairment being claimed would initiate a process that would determine the direction of the entirety of the case in question. In a system with categorized mental impairment, the defense would need to do more than simply suggest that the defendant was under the influence of a mental disruption at the time of the criminal action and more than simply provide a definition of what that impairment was or how it influenced behavior. Instead, the defense would be required to place the mental impairment into


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an established category that had been previously defined by the efforts of the legal and psychological communities that had included within it a series of reference points that would serve to outline the necessary provisions of the evidence that would support the claim of that specific mental disorder. A categorized system for evaluating insanity would create an outlined process that would organize the presentation of evidence, dictate what evidence would be meaningful, and would suggest how that evidence should be interpreted serving to make the evaluation and understanding of the illness more objective.
By any estimation, these categories would need to include stipulations for disorders that are psychotic in nature, those that affect cognition through alterations of judgment or reasoning, and those that affect behavior through compelling influences. Accounting for these disease groups allows for an outlined process of evidence presentation and interpretation for the diseases most commonly associated with significant influences on behavior, affects on the capacity to understand right from wrong, and thus have the greatest likelihood of being reasonably held responsible for criminal behaviors. There are several diseases that have been classified in psychological science that show the underlying factors that could influence behaviors for the three categories of mental impairment that affect an individual primarily through psychotic effects, cognitive alterations, or compelling influences. In relation specifically to the ability of the disorder to create or significantly influence criminal behavior, the disorders that can be used most readily to understand how the standards of evaluation are to be created for these categories include schizophrenia for the psychotic category, Attention Deficit/Hyperactivity Disorder for the cognitive alteration spectrum, and Obsessive-Compulsive Disorder for the compelling influence category. Furthermore, there are some disorders that have symptomatological expressions that allow them to align with more than one category. Bipolar Disorder is an


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excellent example of the kind of disorder that can present itself with drastically different symptoms at different times throughout the course of the disease.
Certain aspects of a disease and different interpretations of the presenting symptoms can led the defense to believe that the evaluative and interpretive measures of a certain category could plausibly fit the defendants situation despite the fact that the disease would seem to be more readily applied to another category. In a case in which the disorder, or its symptoms, can reasonably be evaluated by the standards of any or all of the categories the defense must choose one category to which the mental impairment will be applied. Truly, this would happen regardless of the disease or its symptoms. The defense must indicate which category will be used when evaluating the impairment, but there is no reason to force the defense to be evaluated by criteria that they do not believe suits their situation. This is because the defense will be providing the evidence to support their claim while the prosecution will be providing evidence to reject this claim. With established evaluative criteria for each category there is no need to force a disorder or symptom into a specific category because the goal is to reach a more justified, reasonable, and objective conclusion. The defense should be allowed to be adjudicated under the preferred measure if a disorder impacted behavior under one system of evaluation, but not another. However, it is up to the defense to choose the category that they believe has the best fit for their situation as they are expected to best understand the nature of the impairment. There should be no grounds for a mistrial based on category selection when the defense selects the criteria, but the same cannot be said when the evaluative and interpretive measure is a forced
choice.


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The Psychotic Features Category.
In order to establish a categories of evaluation the legal system should start by analyzing the current understanding of psychological disorders, many of which themselves can be placed into similar categories. One of the most common disorders associated with abnormal behavior and cognitive impairment is schizophrenia. Schizophrenia is a disorder with a primarily psychotic symptomatic expression, but it affects those who suffer from it in many ways. Schizophrenia is truly more of a spectrum disorder that is represented by the unique situation of each individual suffering form it than it is a disorder with clear lines of definition (Lyons & Martin, 2014). Schizophrenia, as with any psychosis, results in the loss of complete connection with reality (Comer, 2015). Whether through positive symptoms like delusions and hallucinations or through negative symptoms such as inappropriate affect or catatonia the person with schizophrenia has become perceptually and behaviorally abnormal (Lyons & Martin, 2014). This means that the understanding and connection to the real world is in flux. This is the highlight of the criteria by which the psychotic category of insanity should be based because an individuals grasp on reality, and their place in it, relate directly to their ability to properly and completely understand their actions. The psychotic features category suggests that all evidence of mental illness and its influences on criminal action should be in reference to and interpreted through the understanding of how the individual was separated from reality by the illness and how that separation took away the ability to properly conform behaviors within the rule of law. This category relates first and foremost to the MNaughten standard and its provisional statement on Mens Rea. Mens Rea suggests that there is no crime where there is no ability to understand the wrongfulness of ones behavior or there is no intent to commit an unlawful act (Francone, 2016).


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The evaluation of the illness and the evaluation of its influence on the criminal act that resulted in the court case should be considered separately. By establishing a mental impairment that fits the perceptual qualifications of the psychotic features category the defense is not providing evidence of the mental impairments influence on behavior, and the same can be said of each of the other categories. That is to say that the evidence to meet the qualifications to enter a plea of insanity under a given category is separate from the evidence supporting a verdict of not guilty by reason of insanity. These are two separate events and meeting the qualifications for having the illness evaluated under a given category does not mean that the individual will have a verdict that finds the illness responsible for the crime. Meeting the qualifications for a category only means that the insanity plea has be substantiated and the case may continue with the understanding of what evaluative tools will be used and how future evidence will be interpreted based on the outline of the category chosen. However, it is important that the mental impairment presented by the defense meet this qualification because it establishes the ability of the defect to limit the defendants capacities. If the impairment presented by the defense cannot stand up to the scrutiny of the categorys qualification then there is no case for insanity under the chosen category.
The individual positive symptoms of schizophrenia can be further reduced and understood for the impacts that they may have on perception and behavior. Under this category the defense will have to elaborate on the exact nature of the defendants symptoms and describe how they impacted behavior at the time of the criminal action. Two of the most commonly known positive symptoms of schizophrenia are hallucinations and delusions (Comer, 2015). Hallucinations can have many expressions in the ways that they can affect the sensory system by creating feelings and sensations that are not truly in existence. Delusions, as well, have many


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different expressions and can affect the individual in terms of alterations to what they believe and how they believe they are viewed in the world. What is important under this qualification of the disorder is not what symptoms are present or how they express themselves. What is important is that the defense provides sufficient evidence that there was a perceptual abnormality caused by the disorder and there must be evidence of how that perceptual abnormality influenced the individual and resulted in the criminal action. The defense will need to illustrate, likely through a process of deductive reasoning, how the symptom led the defendant to criminal behavior. As with any disorder, the court must remember that there are many people who exhibit these symptoms or live with these disorders, but not all of them commit criminal acts. By exposing the nature of the defendants alleged impairment the defense opens a discussion for the jury and the court to decide whether or not these symptoms could and did have an effect on the event in question. Evidence of hallucinations or evidence of delusions could be supported by the statements from the defense at any stage of the trial, but debate over the role that these impairments may have had on the criminal action must occur after the impairment has been established and the evidence to connect the illness to the crime has been presented.
The Cognitive Alterations Category.
The cognitive alterations category is distinguished by the way in which the individuals typical thought processes have been affected by some form of mental impairment. This means that as a direct result of a disorder, its symptoms, or the overall impairment there would be sufficient reason to conclude that the individual had been led to commit a crime that they otherwise would not have committed had there been no alteration to their cognitive abilities. The cognitive functions that would most likely be connected to criminal actions consist of alterations to rational processes, acts requiring judgment, or any process of evaluation or analysis,


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specifically those related to the analyzing the costs and benefits of pursuing a certain course of action. Under typical circumstances, attention deficit/hyperactivity disorder, or ADHD, would not be an acceptable defense under the insanity plea, but ADHD provides an effective basis from which one could draw the defining factors of the cognitive alterations category.
ADHD is a disorder that leads individuals to act in inappropriate ways do to an inability to focus, an inability to inhibit certain behaviors, and an inability to resist the temptation to be distracted by unimportant stimuli (Comer, 2015). There are many symptomatic expressions of ADHD that all seem to revolve around limitations of the executive functioning provided by the prefrontal cortex of those who suffer from this disorder (Lyons & Martin, 2014). The connection between this disorder, the region of the brain assumed to be affected, and the resulting changes in behavior through deficits in reasoning and judgment are what separate this cluster of symptoms and allow them to be isolated as a category of their own. Although the psychotic features category can be said to affect the individuals judgment and reasoning in similar ways, the nature of the disrupted rational pattern is caused by a break from reality or a perceptual abnormality that is not consistent with the cognitive alterations cluster. Cognitive alterations, in this sense, are attributable not to a perceptual abnormality that may have roots in the altered functioning of the neural network, but are instead able to be ascribed to the dysfunction of the neural structures utilized in the processes of thinking, rationalizing, and evaluating.
ADHD becomes such a good example for this category when it is evaluated for its influences on behaviors. The prefrontal cortex has long been associated with the type of functioning that brings people to organized, rational, and reasonable behaviors (Myers, 2014). It is this area of the brain that restrains people when in certain company or in certain situations. It is this area of the brain that evaluates the risks, the costs, and the benefits of certain behaviors in


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given situations. It is this area of the brain that has been shown over numerous studies across time to rationalize, justify, and consciously think about behaviors, both behaviors that have been performed and those behaviors that have yet to be performed. Disorders such as ADHD have a negative impact on the ability to make appropriate choices based on the expectations of the situation in which individuals finds themselves. This is why some many children who suffer from ADHD have trouble in school, are frequently at odds with their parents, or have received treatment for the disorder (Comer, 2015).
As with the psychotic features category, the cognitive alterations cluster can be associated with the current rules of the insanity defense. When the defense seeks to establish insanity based on this category of mental impairments the debate will typically involve a discussion of Mens Rea and MNaughten. Mens Rea is a standard based on criminal intent while MNaughten suggests the capacity to understand right from wrong, and this category of mental impairment suggests that the individual was completely incapable of knowing right from wrong based on the alterations to rational, judgmental, and other evaluative processes. What is being suggested when the mental illness fits into this category is that the individual was impaired by mental illness to the point that they would not be able to appropriately conform their actions to the typical societal norm. The cognitive alterations category is a suggestion that, through mental impairment, the individual was incapable of conducting proper actions as a result of a distinct and evident flaw in the natural thought process. The disorders and symptoms that fit this category of impairment alter the evaluative tools available to the individuals who suffer from these disorders and symptoms. As such, the individuals ability to resist the urge to act inappropriately, the ability to recognize natural and manmade deterrents to inappropriate


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behavior, and the ability to realize alternative solutions to perceived problems have been compromised.
There is an assumption suggesting that any one of these categories of mental impairment may yield different likelihoods for the defense to gamer a verdict of not guilty by reason of insanity. Although each case, each defendant, and each disease will be evaluated for its unique circumstances there may be concern over which category gives the individual the best and worst chance of having a successful defense. However, the most likely outcome for each category is a verdict of guilty but mentally ill. This is a designed phenomena and it is a completely acceptable result for these cases. The guilty but mentally ill verdict in this system is the preferred verdict because it allows the criminal justice system to hold the individual responsible, seek retribution on behalf of the victims, and provide the defendant with treatment for the underlying disorder. The goal of mental impairment categorization is to find more objective and consistent results.
The goal is not to provide all people who suffer from mental illness and commit crimes with a track to impunity. The primary reason behind the hope for a change to the traditional evaluative measures of the insanity defense is an increase in appropriate treatment for individuals who are suffering from mental illness and have shown a tendency to threaten the public sphere through criminal action. If the criminal action can be reasonably attributed to the mental impairment, that is to say that treatment for the mental impairment would reduce the likelihood of criminal actions in the future, then the court system must have a means to process such cases. Funneling insanity cases towards the GBMI verdict accounts for mental illness by providing treatment for the defendant, but it also allows the court to hold the defendant responsible for their actions.
The Compelling Influences Category.


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The next class of mental impairment that must be accounted for relates to those disorders which create an exceptionally compelling impulse. It is the nature of these impulses that define and outline the nature of this category. One could say that any crime was done out of impulse or snap judgments that are based on the strongest desire in mind at the time of the crime committed, but what separates this category from the normal impulses that create criminal action are the factors that create and influence the strength of the impulse. An individual may rob a bank out of the desire for the money held within its walls, but greed and a lust for wealth is not in and of itself a compelling, irresistible influence. Furthermore, greed and the desire for wealth are not mental impairments, in fact the desire for financial security is fairly common among human beings. It is this idea that guides the creation of the standards for this particular category. The basis for the strength and compelling nature of the impulse must be weighed against the typical expectation for the power of the same impulse for the typical individual.
It can be assumed that any crime committed has something to be gained for the individual who commits the crime. It can also be assumed that there are numerous if not countless individuals who had the same impulse to commit the same crime all of which did not commit the illegal act. The defense, under the standards of this category, are attempting to show how and why the impulse in this specific case was so exceptionally compelling for the individual who committed the crime. The category of exceptional impulses has several requirements to establish this compulsion. First, and foremost, is the need for a mental impairment. Without the defense having some mental impairment to point to as the root cause of the criminal act then there can be no exceptional compulsion. This is because the court can assume that any person experiencing no mental defect should feel no impulse so great that it compels a person to act outside of the norms of society. Second, the defense will have to show how the nature of that mental


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impairment drove the person to commit the criminal action. This means that the defense will need to provide evidence that shows and explains how the individual was driven to act in such a way. In essence, an exceptional compulsion follows the construct of the irresistible impulse standard of the insanity defense, and the exceptional compulsion category should be primarily viewed through the lens of this standard. While the irresistible impulse standard is a suggestion that the individual would have still committed the criminal act knowing that they were going to be caught and punished for it, the concept behind the exceptional compulsion category is the idea that the mental impairment forced the individual to act in a way that they would not have acted if the forces driving the individual to act were not as strong.
The benchmark disorder that most accurately describes the nature of these exceptional compulsions is Obsessive-Compulsive Disorder, or OCD. OCD is characterized by an infectious or unavoidable thought that causes heightened anxieties that can only be resolved by certain actions (Comer, 2015). The disorder creates a reciprocal process of agitation, relief, and reinforcement that the individual cannot avoid. The anxiety is caused by the obsession over a thought or a fear that drives the individual to be compelled to perform some action that they feel will resolve their anxiety. With each successfully completed cycle of anxiety, compensatory behavior, and relief from anxiety the association between the relief of the negative feelings and the behavior that induces the relief becomes stronger. As the association becomes stronger, the force driving the need to perform the behavior to solve the anxiety becomes more compelling. In this way the mental impairment is taking control over the individuals behaviors. The individual would most likely prefer not to perform these behaviors, in fact the loss of control and loss of choice over behavior is what often drives individuals to seek treatment for OCD. As such, exceptional compulsions can be seen as the symptoms of a mental impairment that afflicts the


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mind in a way that causes the person to loss control over their actions. Just as the individual who cannot control the spread of cancer through their bodys tissues, the person afflicted by this type of disorder loses control over their behaviors. The difference between the nature of OCD and the circumstances typically present for those falling into the compelling influences category is one of frequency. OCD is a disorder that constantly afflicts the individual and typically does not involve criminal behaviors. The compelling influences category is used to identify mental impairments that create a brief, momentary, and overpowering coercion. This means that OCD may form a pattern of behavior for the individual while those impairments that fall under this classification will more commonly be expressed without such patterns where the circumstances surrounding the crime interacted with the illness to create the impulse and coercive force.
However, the disorders and symptoms that can be applied to the category of exceptional compulsions must act in a similar way to OCD. The defense must show evidence of not only the disorder or symptoms that drive this exceptional compulsion, but they must also show evidence of this overwhelming feeling or emotion that can only be relieved by commission of the compensatory action. That is, the defense must show that the criminal act was the direct result of the coercive effects of the disorder. This rule places the exceptional compulsion category in a separate space than that which can be evaluated by strict adherence to the MNaughten rule and Mens Rea. In these cases the individual is could be able to know and understand right and wrong and thus must be evaluated by a more fitting standard that accounts for this awareness. In cases of exceptional compulsion the most important factor is not whether the defendant knew that their actions were wrong or illegal. What is important in cases of exceptional influence is the idea that the mental impairment can create influences so strong that regardless of right or


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wrong and regardless of whether or not the defendant knew they would be caught and prosecuted the action would still be committed.
Categories of Impairment in Conclusion.
By defining these three categories for mental impairments the court system will be creating three different paths that can be taken by the defense for their insanity plea. Logical deductions and inferences from the established patterns could suggest which path would best suit which disorder. While this may seem to suggest that there is room for manipulation or playing the system to attempt to find the best path to impunity, the true goal of this mental impairment categorization process is to help find the most consistent and objective verdicts possible. To put it simply, some impairments do not fit certain categories regardless of how the disorder is presented or argued. To further complicate the process there are some disorders that can be reasonably applied to any of the three categories that have been outlined. The concern over defense lawyers manipulating the presentation of a disorder to fit a certain category and find a certain verdict for their client is reasonable but unfounded. Despite the fact that the defense could choose any category that they deem suitable, the ability to show enough evidence of insanity does not change from category to category. What does change is the understanding and the evaluation of the influence that an illness had in the commission of a criminal act. These categories do more to help jurors understand and interpret the evidence presented than it does to show attourneys how to reach a certain finding.
Illuminating the way in which a trial would be impacted by a single disorder being evaluated under any one category, bipolar disorder can reasonably be applied to each category with equal chances for success or failure depending on the presenting symptoms at the time the crime was committed. Bipolar disorder has the ability to compel an individual to behave in


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abnormal ways that they otherwise would not choose to behave in, bipolar disorder can create a deficiency in the cognitive tools for evaluation and judgment, and bipolar disorder can put a person out of touch with reality in a way that causes them to no longer have the capacity for understanding the true nature and quality of certain actions (Comer, 2015). In a case in which an impairment like bipolar disorder is cited as the cause of criminal action the circumstances that determine which category of mental impairment is most appropriate should be based on the symptoms that were presumed to be at play at the time of the criminal action. Regardless of which symptom was present or which category represents the circumstances surrounding the situation, the case of the defendants sanity will revolve around what can be shown was occurring at the time of the criminal action. Regardless of which illness is cited this will be the greatest challenge for the defense. Regardless of the steps or the evidence necessary to prove the influences of the impairment there will be a standard path followed by the defense. The defense will have to choose which category fits the evident symptoms, they will have to show evidence of the disorder, and they will have to meet the qualifications of the category, and they will have to show evidence of how the illness impacted the individuals behavior at the time of the criminal action.
Bipolar disorder may be most readily understood as a cognitive alteration or an exceptional compulsion. Certain symptoms of the disorder seem to mark it as the kind of disorder that alters cognitive functions in a way that primarily impairs reasoning or judgment, but the same symptoms can be said to influence impulses by highlighting desires while eliminating inhibitions and alternative courses of action (Comer, 2015). This is particularly true for those cases in which the defendant was in the midst of a manic episode during the crime. Although it has many forms and representations, mania is a state of upheaval. Mania leads many


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people who suffer from it to make irrational decisions based on heat of the moment thinking that leads them to seek out new and sometimes dangerous experiences, feel a sense of irrational optimism that makes them believe that they can do things that they normally would not consider, or even feel so invulnerable to consequences that they would make poor choices under the assumption that they will inevitably overcome any problem that arises (Comer, 2015). Bipolar disorder can also lead to a diminished need for sleep which, with a long enough duration, can be connected to cognitive deficits that specifically relate to judgment and forethought (Lyons & Martin, 2014). This set of symptoms would require that the defense show some kind of evidence that the defendant was in a state of mania at the time of the criminal action, but that alone would not be enough to establish insanity. The path of cognitive alteration is strewn with pitfalls for the defense to establish insanity because it is the most difficult to understand and prove. On the other hand, the exceptional compulsion category is not readily convincing either.
For the manic symptoms of bipolar disorder to show insanity under the cognitive alterations category, the defense would need to cite and continually refer to the standards of the MNaughten rule and the Durham rule. According to the Durham rule, mania could be the mental illness that produces the criminal action but without some evidence that satisfies the MNaughten standard of knowledge or understanding of right and wrong there would not be enough evidence for a true finding of not guilty by reason of insanity. The exceptional compulsion category, however, would follow the standards of the Durham rule and the irresistible impulse test. To establish insanity under this path the defense would still need to show evidence of the mental illness which produced the criminal action, but they would now need to show that the manic episode in some way influenced the decision making process resulting in the choices that created the criminal act. This would mean that the exceptional


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compulsion and the irresistible impulse were the manic feelings themselves. The defense would need to convince the jury that the mania took over the person afflicted by it and drove them to behave in the ways that they did. In this case criminal responsibility would be on the mental disorder because the person was not in control, at least not in the conventional sense. Instead, the power and influence of the manic episode in essence created impulses, compulsions, drives, and motivations that do not characterize the defendant when not in a manic episode. Regardless of which of these two paths the defense chose, they would suggest that if treatments were able to stabilize the mood of the individual there would cease to be manic episodes and thus no more mania induced behaviors.
The trial of a bipolar individual claiming psychotic features as the basis for their insanity defense would look much different than the previous two paths. Under this standard the defendants illness would be evaluated for the way in which they are separated or detached form the truth of reality. The most significant symptom present in individuals with bipolar disorder that accounts for this separation would be delusional beliefs. Whether these distorted perceptions and beliefs are created or even connected to the depressive or manic stages of bipolar disorder is not consistent for each individual. However, there is consistency between presentations of delusions and the resulting delusional behaviors. Delusions are beliefs or sets of beliefs about the nature of reality that are not empirically validated (Comer, 2015). These kinds of delusions can lead individuals to believe anything from the idea that they are persecuted by others to the idea that they are cosmically significant or exceedingly powerful (Lyons & Martin, 2014).
In a case such as this the focus would not be on the disorder as a whole, but on the specific symptom being proposed as the catalyst for the criminal behavior. With the nature of


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the symptoms in mind the defense would seek to establish the basis of the symptom and then provide evidence for the way in which it impacted the defendants behaviors. This case would most likely satisfy the Durham rule, but the case would need to answer questions with an aim to satisfy the MNaughten standard and the nature of Mens Rea. The ability to establish the understanding and knowledge of right and wrong would directly relate to the nature of the delusions, but Mens Rea and the nature of criminal intent may play a role as well. Delusional beliefs may create an adherence to the idea that what the individual is doing is right or that it is not a crime, but it may also make the individual believe that what they are doing is morally acceptable even though they know and understand that what they are doing is technically criminal.
How the defense chooses to go about establishing insanity in any kind of case is dependant upon the nature of the evidence at hand. Not every case is going to look the same even when the disorder presented by the defense is similar. Nevertheless, it is imperative that the standards by which the defendant will be judged be consistent. By establishing set categories with direct paths through which the defense will be challenged the court system will be able to provide an objective and consistent face for the insanity defense. The defined category system will allow the justice system the opportunity to have an outlined and viable means to establish insanity based on previously established syndromatic methods of evaluation that can be supported by the kinds scientific evidence and expert testimony that will leave fewer questions in the minds of the public as to why a defendant was given the verdict that they received.
The Durham Rule and the Categories of Impairment
Although each category has a designed set of evaluative measures, each tool for evaluating insanity in todays criminal justice system may play a significant role in finding


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insanity in this new system. The change in processing insanity cases revolves around the creation of a more consistent and objective process that will yield more consistent and understandable verdicts. The hope is that no longer will arbitrary borders between states define whether or not an individual is found insane and that different juries, or the jury and the public for that matter, will no longer reach different conclusions about the nature and quality of an individuals sanity. To continue this trend, the criminal justice system must incorporate the Durham rule into this process of evaluation. Although the Durham rule has been more or less abandoned due to its seemingly loose and unrestrictive evaluation of mental illnesses and insanity there is still a role for it in these cases. The Durham rule suggests that the criminal act must directly result from the mental illness, and in this way the Durham rule is an effective tool for establishing the grounds to find a not guilty by reason of insanity finding. The Durham rule alone is a weak barrier between sanity and insanity, but when it is moved into position to separate those who are guilty but mentally ill from those who are not guilty by reason of insanity the rule creates a more thorough means of evaluation. The Durham standard can be used to further separate the grounds of evidence into a third and final dimension.
The processing of the case to this point has focused on establishing the illness and establishing the effect it has on individuals and their behaviors. The final method of evaluation becomes a meaningful interpretation of evidence suggesting how the mental impairment created or produced the crime. The Durham rule by its nature does exactly that. The Durham rule can act as the final threshold between verdicts to establish that the mental illness can or cannot be held responsible for the criminal action. By satisfying the criteria of the Durham rule a defendant can be found not guilty by reason of insanity, but without satisfying the Durham rule this finding cannot be validated. If the illness cannot be shown to create or produce the criminal


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action on its own then the individual must be held responsible regardless of the severity of the illness.
This speaks to the importance of the GBMI verdict. Under normal circumstances insanity is a debate between incarceration and treatment or hold the individual responsible or claim that the mental illness is responsible. By including the GBMI verdict the door opens to allowing the defendant to be held responsible while still being given treatment. This is important due to the positive correlation between the severity of the illness and the insanity finding in the current model (Schouten, 2012). The current system with only guilty and not guilty by reason of insanity sets the stage for a debate not of the role and influences of illness but on a debate of the need for treatment. Having only two options can sometimes force the hand of jurors and judges who believe that treatment is needed for severe cases or severe disorders. If these individuals find the illness of the defendant to be so great then they will lean towards a finding of insanity and towards treatment when in fact the individual should have been held responsible then the finding will be tainted. Without the GBMI verdict the criminal justice system is unable to find truth in every case due to the constraints of the debate on either incarceration or treatment.
Future Sources of Evidence for Insanity and Rehabilitation
The research currently being conducted by psychologists, psychiatrists, and other scientific professionals in regards to the evidence of mental illness coming from analysis of biological structures and functions is evolving, but it is less than absolute. As a result, at this time the scientific community is unable to provide conclusive evidence of the connection between certain biological abnormalities and a concurrent mental disorder. Strong connections have been made between certain brain regions, gray and white matter volumes, and the resulting functions of the brain (Nery, Monkul, & Lafer, 2013; Sohn et. al. 2014; Kuroki et. al., 2017).


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However, there is a significant issue being faced by neurological researchers, and it is one of consistency of findings that lead to accumulated support. To put it simply, while there does seem to be an association between the structural and functional abnormalities of the brain and mental illness there is no conclusive evidence that can be pointed to as an absolute and defining characteristic for all individuals.
Despite the fact that there has not been any proven link to certain brain abnormalities and mental illness, there is a growing number of researchers investigating the connections between mental illness and brain alterations. In the past, certain research has revealed connections between the differences in regional gray and white matter volumes of the brain for individuals suffering from obsessive-compulsive disorder (Gilbert et. al., 2008; Valente et. al., 2005) while other studies have revealed the same phenomenon of gray and white matter abnormality across certain regions of the brain for patients suffering from schizophrenia (Kim, Kim, & Jeong, 2017; Sohn et. al., 2014). The fact that these results come from studies with small sample sizes and occasionally produce conflicting results contribute to the reason as to why these findings still fall short of conclusive evidence. Nevertheless, the case to create new theories of understanding is growing, and it will be important for the criminal justice system to be mindful of the potential that scientific evidence has for informing legal decisions.
Of particular importance to the criminal justice system should be findings like that of Noriomi et. al. who examined 57 patients with a history of schizophrenia for the differences in their brain structure (2017). For this study the researchers wanted to examine the differences in brain structure that might have played a role in certain behaviors exhibited in the past, specifically behaviors of a serious and violent nature. The participants in this study were grouped into one of three categories represented by those without a history of violence, those


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whose violence was considered impulsive, and those whose violent acts were considered premeditated. The researchers thought that they would see significant differences in brain structure in the form of regional gray matter volume differences between those who had been violent and those who had not been violent, but the researchers also wanted to know what differences could be seen in the brain volumes of those whose violence was impulsive and those whose violence was premeditated.
As they had hypothesized, the researchers found evidence suggesting that the brain volumes of violent and non-violent schizophrenic patients were different. Furthermore, the brains of premeditated, violent patients and impulsive, violent patients showed differences in specific regions as well. The findings of this study are of particular interest because of the nature of the violent acts. In many court cases the prosecution will use planning as a means to establish Mens Rea, or criminal intent. This is true in the case of James Holmes where the prosecution attempted to refute the insanity plea on the basis of Holmes extensive planning of the harrowing acts he committed in Aurora, CO (Keneally, 2015). The defense contended that despite the thorough planning of the crime what was important in this case was not having a plan or lacking a plan as a means to establish insanity, but instead it is the nature of the cognitive functions that proceeded and led to the crime that made the individual either sane or insane (Keneally, 2015).
In this instance the defense is stating that if the manner of thinking creating a plan is disordered then the plan and the actions to carry it out are the product of ones illness and stem from an inability to conform to the expected standards of behavior, thus cannot also suggest clear and unimpaired thinking. The results found in the study by Noriomi et. al. suggest a biological basis for the ability of schizophrenic individuals to commit violent crimes as well as to plan them out (2017).


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Although the illness of schizophrenia does not always present with consistent symptoms, behaviors, or criminal actions it is possible that the alterations in brain matter volume could have an influence on the behaviors of individuals with the disease. These influences may come from a biological level, from a genetic level, or both (Dries et. al., 2016; Sohn et. al., 2014). In the spirit of the traditional standards of legal insanity an individual should not be held responsible for actions that are caused by an impairment of understanding or are caused by the influences of a mental illness that exert a compelling impulse. These represent the underlying sentiments of the MNaughten rule and the irresistible impulse test respectively. Research conducted by Dries et. al. provides a mechanistic explanation for the way in which schizophrenia can lead to changes in brain structure and how these changes in brain structure could produce the behaviors that are often exhibited by patients with schizophrenia (2016). By examining the differences between three groups of mice that were produced and placed into groups based on genetic sequencing and verification of the lack of the nicastrin y-secretase enzyme receptor, which is responsible for oligodendrocyte production and the resulting myelination of brain matter, these researchers gathered evidence of behavioral differences that are associated with genetic and biological abnormalities. These mice were observed in the experimental setting, and the group completely lacking the enzyme receptor, the homozygous genotype group, was shown to have more common displays of the hyperactive and exploratory behaviors commonly exhibited by mice with schizophrenic patterns. Furthermore, unlike the other two groups, homozygous with the receptor and the heterozygous with the receptor, this group showed signs of excessive grooming that led to patches of irritated flesh around the nape of the neck. To account for concerns over the generalizability findings to humans, the researchers gathered nearly 1,300 human participants to be grouped by mental health status and evaluated for their genetic circumstance. This aspect


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of the study provided evidence of a connection between schizophrenia and its typical hyperactive and compulsive behaviors with the genetic sequence known to result in deficient nicastrin y-secretase. Although the research is preliminary, the work by Dries et. al. suggests that there is a method by which genetics can influence biological abnormalities that lead to altered behavioral patterns.
Kim, Kim, and Jeong performed research suggesting that there may be a connection between the brain matter volume changes seen in schizophrenia and the duration and severity of the disease (2017). This research revealed the differences between brain matter volumes of schizophrenic and healthy participants that have become commonplace in the research examining this phenomenon. In this way the research adds evidence to support the idea of a connection between schizophrenia and the gray and white matter volume differences across certain regions of the brain. However, this study presents new evidence pointing to a relationship between the length and severity of the disease and the extent of these abnormalities in brain matter volume. Specifically, these researchers found that as a patient continues to suffer from the disease white matter volumes seem to reduce in regions of the brain. This means that it is likely for a schizophrenic brain to look increasingly different, or more abnormal, as time goes on.
Although this may be a troubling thought for anyone suffering from or attempting to treat the illness, there may be reason to believe in research as a means not only to identify such problems but as a means to identify potential solutions to these problems as well. Xiao et. al. conducted research examining the effects of the pharmaceutical options for treatment of schizophrenia on the structure of the brain (2008). The researchers produced a cohort of fetal mice known to have the genetic background of mice with schizophrenic features. This genetic


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background had been associated with the brain abnormalities shown in the articles previously mentioned. The researchers of this study wanted to evaluate the effects of several antipsychotic medications on the brain structure of these mice, so the placed the mice into several groups defined by which medication would be given. This created three groups of mice being given Quetiapine, Haloperidol, or Clozapine. Although each of these medications has been used to treat schizophrenia the results presented in this article suggest that Quetiapine has the largest overall effect. Not only is Quetiapine known to control the symptoms of the disease, as does Haloperidol and Clozapine, it also showed signs of a capacity to increase neural progenitor cells in the presence of growth factors, it resulted in a greater volume of oligodendrocyte production, it stimulated myelination, and it even prevented breakdown of neural tissue by way of neural toxins that would typically result in cognitive impairments for these mice (Xiao et. al., 2008). It is difficult to make the transition from animal models to human participants, but based on these encouraging results it would seem that there is a case to be made for the benefits of Quetiapine treatment of schizophrenia. What is most significant is that it would seem that Quetiapine has the potential to have a restorative effect on the brain structure. In addition to Quetiapine, the use of Lithium, Carbamazepine, and Valproate in the treatment of bipolar disorder has shown a similar association to positive changes in brain structure as the behaviors of patients begin to normalize (Germana et. al., 2010). This kind of research suggests that not only is there an association between the disease and a state of progressive deterioration in the brain there is also an association between treatment of the disease and a state of restoration in the brain.
When considering the role of neurological evidence of mental illness in the criminal justice system, these studies make a statement of the potential impact that could be had. There is a growing base of evidence suggesting that there is a connection between diseased states and


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brain structure, between the length and severity of the disease and its presenting structural abnormalities, and even between these brain structure abnormalities and the underlying behaviors. Most importantly, however, may be the research that suggests a positive, restorative effect of pharmaceutical treatment, which could provide the criminal justice system with evidence of an offenders rehabilitation from a more objective source.
Although there are difficulties presently clouding the evidence coming from neurological research on the genetic and biological correlates of mental illness there are indications that the future might bring more consistency to the findings of these studies. As the scientific understanding of the biological and genetic factors influencing the presentation of mental illness grows the court system needs to be prepared to incorporate this form of evidence into cases that involve mental illness, especially when the insanity defense is invoked. Since the effects of treatment should be visible in the images produced from a scan of an individuals brain after treatment, it will be important for those who seek to treat individuals in the criminal justice system to incorporate evidence from neurological imagery because it may provide evidence of a positive effect of the treatment methods. The use of scientific evidence in the adjudication process can be an effective way for the criminal justice system to come to more reasonable, evident, and objective conclusions on a given defendants sanity. This would result in a stronger understanding of the impact of a mental impairment on an action and would result in fewer questions and debates over the accuracy of the finding. Furthermore, by incorporating the same scientific evidence found to support claims of an individuals rehabilitation after treatment there will be a more objective line of support that would lead to reassurance in the finding of an individuals successful progression to a more healthy state as a result of treatment.


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An Insanity Defense that Reflects Contemporary Society
The current model for the processing of insanity defense claims is not an effective tool for processing cases in which mental impairment has played a role in the criminal action. When an insanity plea is presented it should not be an all-or-nothing affair. A suggestion of insanity is meant to state that mental illness was not only present during the behavior in question but also that this illness played a significant role in the creation of the behavior. However, the current model of insanity in the courtroom frequently presents a position signifying a belief that the concept of sane and insane is a dichotomy of a most disconnected variety even though the reality of the situation is quite different from what this view implies. The result of publicized court cases involving the insanity defense have led the public to misunderstanding, frustration, and disappointment with the criminal justice system. The primary reason behind the public disillusion with the process might be the lack of consistency across jurisdictions and the subjective nature of how each defendant is processed. Although there are some conventional elements used in each court case to evaluate the role of mental impairment, including things like psychological evaluations and jury deliberations, the lack of a country-wide, standardized method of processing creates disruption and dilemma for anyone attempting to understand why a certain outcome was found instead of another.
The reaction of the public to a finding of not guilty by reason of insanity for many highly publicized court cases suggests that the people of the United States would almost always prefer to see a defendant found guilty. The criminal justice system is defined by the idea that the majority of people should be capable of conducting themselves in a manner that is consistent with the law and should be held responsible for their criminal actions (Berman, 2007). This idea is perfectly revealed in the public outcry to the case of John Hinkley Jr. who was found not


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guilty by reason of insanity under the Durham rule after an attempted assassination of then president Ronald Reagan (Jacewicz, 2016). The Durham rule, at the time, was a standard that took a more expansive look at the role of mental impairment in the production of criminal action by which an individual would be found not guilty by reason of insanity if the defense could show that the criminal act was the result of a mental disorder (Feuerstein et. al., 2005). The underlying message established by this standard, that mental illness must be present and responsible for the production of the criminal act for insanity to be a valid finding, is sound. However, the public believed the Durham rule to be careless and unrestrictive because it allowed a man to escape responsibility for his crime under the pretense of a misunderstood mental impairment, and as a result of this view, the standards by which insanity was determined turned to a more strict and unified understanding (Jacewicz, 2016). This is the direction that the insanity defense should continue to go in the future.
There is reason to believe that a shift towards a universal and regulated standard for processing insanity pleas will be needed sooner rather than later. There is no reason to wait and react to another misunderstood or less than preferred verdict when the means to establish a more objective and consistent insanity defense process is possible now. Regardless of how a change in this process might look, when a standardized form of insanity defense processing is completed it will undoubtedly have elements that evaluate the nature of the mental impairment in order to understand how it would impact an individuals ability to comply with legal and moral standards, and the process will have the ability to be supported by the defense and refuted by the prosecution through the use of psychological and scientific evidence as to the role and severity of that mental impairment. Nevertheless, the American criminal justice system, in many situations,


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prefers a wait and react approach that relies on doing things as normal until there is enough pushback from the public to make an alteration to the current paradigm.
The problem with this approach is evident when one looks at the population of individuals under the supervision of the criminal justice system within the United States. It can be clearly stated, after nothing more than a quick glance at the numbers, that the United States has a disproportionately large population of individuals involved in the criminal justice system (Bureau of Justice Statistics, 2015). This problem has been becoming a bigger issue over the past several decades, but the most striking aspect of the problem is the number of these individuals who suffer from some form of mental illness (James & Glaze, 2006). Although there have been potential solutions proposed and potential solutions implemented as a reaction to the growing number of individuals with mental illness being processed by the criminal justice system the most effective solution to the problem has not yet been found or implemented. This could be due to the tendency of the public perception on mental illness to look overwhelmingly negative while lacking signs of a true understanding of the nature and influence of mental impairment. In many ways, it could be said that the general public does not understand how a mental illness can be responsible for a criminal action while the person who suffers from the illness can be found not responsible for the crime. However, in many cases, the lines of responsibility for the criminal action are not so clearly drawn.
Mental illness does not equal legal insanity and simply because an individual has a mental impairment does not mean that they are immune to any impunity for their actions. This again calls into question the dichotomous relationship between sane and insane that the current form of the criminal justice so frequently supports. The criminal justice system has shown concern with the influences of mental illness on crime by establishing special processing and


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sentencing standards for those individuals showing signs of mental illness and a need for treatment (Burke et. al., 2012). Many jurisdictions have amended their legal processes to account for the growing number of individuals that can and must be processed through a court system that will give them more treatment focused options than had been previously available (Wallace, 2017). It is important for the court to continue trending in this direction by establishing a distinct, standardized process and sentencing structure for those inciting the insanity defense.
The Folly in Findings: Accounting for Responsibility and Illness
The biggest problem with the current form of insanity defense processing is the dichotomous nature of the finding. In most states, an individual under the insanity plea will either be found guilty or not guilty by reason of insanity. These are the only two options available, either sane or insane. Often times, however, the distinction between sanity and insanity are not so cleanly cut. The finding of guilty or not guilty by reason of insanity is not determined by a simple preponderance of empirical evidence. The finding of guilty or not guilty by reason of insanity is based on a societal conception and a normative standard by which a judgment of criminal responsibility will be found (Berman, 2007). However, the social concept of the morally responsible individual does not account for the societal understanding of a mental illness, the symptoms, or how the illness can influence actions. Although the people of the United States may always teach each other the values of accountability and the need to hold each other responsible for actions, the understanding of mental illness and how it can result in altered behavioral patterns will not remain the same. This means that a finding in any case could and would be found differently by a different group of jurors, in a different time period, or through a different interpretation of what constitutes mental illness.


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The problem presented by this fact is that the case cannot be tried again under a newly developed understanding or societal understanding. This puts the insanity defense in a separate space from other cases. For example, the discovery of DNA evidence allowed past cases to be examined again with this new form of evidence being introduced and reviewed to show that the individual sentenced for the crime was or was not the person at fault. This same process could occur with any new form of evidence that can be found through future research. The same cannot be said for a change in the socially based understanding of a concept, especially one as elaborate as the concept of mental illness. With the nature of insanity being a preponderance of evidence through the lens of a normative standard suggesting the morally responsible individual coupled with the personal understanding of mental illness this is simply not possible.
By promoting the use of the guilty but mentally ill verdict as a third option for insanity defense findings many of the current problems with the process can be addressed. The criminal justice system of the United States assumes that most individuals meet the criteria for being held responsible for their actions, meaning that most individuals are sane, competent, and are capable of constraining their actions to be within the rule of law (Berman, 2007). The GBMI verdict accounts for this by extending the ability of the courts to find those with mental illnesses responsible for their actions while simultaneously consenting to the idea that successful treatment for the disorder prior to the criminal act may have reduced the likelihood of the crimes occurrence. As such, this verdict will not only provide the public with the knowledge that the individual has been held responsible and punished for their illicit actions, they will also know that the individual has been given access to appropriate rehabilitative programs that should help mitigate the issues that caused the criminal act resulting in a reduced likelihood of recurrent criminal action. The ability of this verdict to provide punishment and treatment will also fulfill


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the goals of the criminal justice system of retribution, punishment, and societys safety from this individuals criminal actions both now and in the future.


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Full Text

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Stabilizing Insanity: A Systematic Revision to the Insanity Defense by Jason Ostrom An undergraduate thesis submitted in partial completion of the M etropolitan State University of D enver Honors Program December 8, 2017 Dr. Randi Smith Dr. Cynthia Erickson Dr. Megan Hughes Zarzo Primary Advisor Second Reader Honors Program Director

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Stabilizing Insanity Stabilizing Insanity: A Systematic Revision to the Insanity Defense Jason Ostrom MSU Denver Honors Program

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Stabilizing Insanity # The Current Model of Insanity Defense Processing As a legal term t he con cept of insanity throughout history has been defined by dramatically different assumptions. Insanity can be analyzed from any perspective and this analysis can lead to widely varying conclusions for each group or individual considering the idea The issue of creating a unifying definition of insanity is parti cularly difficult when the nature of insanity and its role in behavior, is applied to the judicial proceedings of the criminal justice system but this does not mean that a satisfying means of establishing insanity and properly identifying insane individu als is an impossible task. In the legal context insanity relates directly to criminal responsibility (Martin, 1998) Cases in which defendants are ruled to be insane find the individual not guilty due to the specific nature of their insanity. The finding of not guilty by reason of insanity is a suggestion that the individual cannot be held responsible for their actions because aspects of a mental disorder have corrupted or distorted thought processes so significantly that the individual cannot compose their actions within the realm of appropriate behaviors as defined by society (White, 2017) Ignorance of the law may be no excuse for criminal action, but an inability to understand the criminality of a given action or an inability to refrain from conducting illicit behaviors as a result of mental illness is a suggestion that the mental illness, not the individual, is responsible for the action. What is shown in a case that finds the defendant not guilty by reason of i nsanity is that the defendant did in fact commit the illegal act, but they are not at fault for it (White, 2017) While the person is charged with the crime they cannot to be punished because of the societal belief that those who are not in control of the ir actions cannot be held responsible for those actions. As of 2015, the Bureau of Justice Statistics reported that there were approximately 2.5 million adults held in American jail s and prison s (2015). Based on evidence from historical

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Stabilizing Insanity $ analysis, i t is reasonable to conclude that nearly half of all inmates have a history of psychiatric disorder or are currently presenting symptoms of mental illness (James & Glaze, 2006). Furthermore, i t would seem that individuals with mental illnesses who have be en found guilty of at least one felony in the past are statistically more likely to commit violent crimes in the future (James & Glaze, 2006). Statistical evidence of just how prevalent mental illness is in the American criminal justice system suggests th at there is a major issue to be solved concerning the role of mental illness in criminal behavior. Furthermore, s taggering figures such a s these suggest that there is significant reason to believe that treatment for mental illness, especially for those in the criminal justice system, is tremendously important. While knowledge of which disorders play what role in which crimes remains unclear, what is certain is that there is a need for the criminal justice system to reevaluate the curr ent perspective to in corporate more appropriate techniques to deal with individuals who suffer from the many forms of mental illness. At the forefront of this issue is the nature of criminal responsibility and legal insanity. The current criminal justice system is d esigned to view the majority of people as being capable of understanding the nature of their actions and capable of conforming their behavior to the typical standards of mainstream society (Berman, 2007) This means that almost all people will understand what is right and what is wrong, and most individuals will be able to know when and where certain behaviors are not acceptable. However, the insanity defense is a legal response to the idea that mental illness can alter the cognitive function of an indivi dual to the point that they will not be able to abide by the law in the same way that most everyone else can. This legal defense has drawn public scrutiny because it is perceived as being a way to circumvent the law and to avoid responsibility for what ma ny consider to be heinous actions (Jacewicz, 2016) In truth, the insanity defense is used in only one percent of all felony cases, and it is not successful

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Stabilizing Insanity % in more than a mere fraction of those cases in which it is raised (Martin, 1998). Due to the popu larity and intrigue involved in the high profile cases in which the plea is raised, such as the case of John Hinckley who was found not guilty by reason of insanity after he attempted to assassinate then president Ronald Reagan in order to gain the favor o f actress Jodie Foster, the public has consistently shown their desire to turn further and further away from the use of the insanity defense (Jacewicz, 2016) The pessimistic view of the insanity defense has resulted in a more strict interpretation of the definition of insanity throughout the United States. Although every state has different guidelines and standards each state has devised a system that is believe d to accurately assess criminal insanity, the role of mental illness in the life of the defen dant, and the effect made on behavior by the illness Given that there are so many different interpretations of insanity throughout the United States, it is hard to pinpoint an exact definition of legal insanity By federal regulation it has been made cl ear that mental illnesses, as they are individually outlined in the Diagnostic and Statistical Manual, are not consistent with legal insanity (White, 2017) In other words, there is more required of the defense attorney in order to prove legal insanity th an the simple proof of diagnosis of a mental disorder. Mental illness does seem to be a necessary component for legal insanity, but which manner of illness or symptomatic expression is not established. The reality of the current situation is that any men t al distortion can feasibly be used as a defense regardless of whether or not it is an established psychiatric disorder. Naturally, exceptions for voluntary intoxication and antisocial behaviors including kleptoma nia, pedophilia, pyromania, and so on do e xist because they cannot justifiably relieve an individual from responsibility for their actions (Schouten, 2012). The deciding factor on whether or not a plea is accep ted by the jury is the interplay of the various factors surrounding the case. While the jury determines insanity, it is the

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Stabilizing Insanity & responsibility of the defense to provide the evidence necessary to sway the minds of the jury while the prosecution refutes the claim. The insanity defense creates a case in which there is a debate not of innocent until proven guilty but rather sane until proven insane Through analysis of previous cases in which the insanity defense has been involved the factors contributing to the success or fai lure of a defendant's claim of insanity can be brought to light. The most influential aspects of any insanity claim are those that revolve around the symptoms or the disease declared and its apparent severity. Typically, the more severe symptoms and the most physiol ogically evident diseases have the greatest likelihood of being successful (Schouten, 2012). However simply having a severe and biologically evident disorder is not enough. T he defense must show that the symptoms, or the disorder have alter ed the perception of reality or has affected the individual's ability to control their actions. These final two aspects of the defense relate directly to the most stringent legal interpretation of the insanity defense. Each state can have its own standar d by which insanity defense claims are evaluated, and any symptom or illness proposed by the defense will have to sufficiently explain how consciousness was altered at the time of the crime in order to create a departure from normal and appropriate behavior (White, 2017) The medical director of the American Academy of Psychiatry states that the most common mental illness claimed for the insanity defense is schizophrenia while other disorders presenting psychotic symptoms are not too far behind (Martin, 1998). An assessment of the state level statutes on insanity reveal why this disease, and those like it, are so common. For example, the M'Naughten rule is not only the most well known standard by which insanity pleas are measured but it is also the most common as it is applied to cases in the majority of state legislatures. This rule, at its core, establishes a debate on the grounds of Mens Rea (Feuerstein

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Stabilizing Insanity et. al., 2005) Mens Rea is one of two parts of any crime. T he first part of any criminal action is Act us Reus, or the act that is illegal while Mens Rea is the criminal mind or the deliberate enactment of a criminal act or criminal intent Mens Rea implies that not only did the pe rson commit a criminal act, Act us Rea, but also the individual either intended to commit a known criminal act or had the ability to know and understand that an act wa s criminal before the acts commission. To suggest insanity under the standard of the M'Naughten rule is to suggest that th e defendant, at the moment of the crime, was incapable of knowing or understanding that the act was criminal. In essence, the insane individual under the M'Naughten rule must be incapable of knowing right from wrong as the direct result of a mental disord er or defect (Feuerstein et. al., 2005). The mass appeal of the M'Naughten rule is not meant to suggest that it is the only viable test for criminal insanity. In fact, there are several other rules used by the remaining state legislatures that have serv ed as effective tests for criminal insanity either as stand alone principles or in conjunction with other insanity defense measures. Some of these other rules include the irresistible impulse standard and the Durham rule. The irresistible impulse standar d is as simple as its name implies It relates to the ability of an individual to exhibit control over their actions at the time of the crime (Feuerstein et. al., 2005). In simple terms, if the individual felt so compelled to perform a criminal action th at they would still have committed the crime regardless of the clear presence of a police officer or other circumstances creating the certainty of apprehension and punishment then the action would be said to have been caused by an irresistible impulse. On the other hand, the Durham rule is a more broad interpretation of insanity that states that no one should be held responsible for a crime that was the product of their mental illness (Jacewicz, 2016). This means that if the defense can present sufficient

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Stabilizing Insanity ( evidence to suggest that the crime was a direct result of mental illness, meaning that the mental illness was responsible for the crime, then the defendant should not be held responsible and cannot be punished. Despite the differences between these rules the American Law Institute has pulled together the foundational aspects of each rule to better define insanity in the legal context. The American Law Institute indicates that insanity exempts individuals from punishment when the presence of a mental diso rder diminishes the capacity to appreciate the criminal nature of their conduct or limits the ability to conform to societal expectations for conduct ( Feuerstein et. al, 2005 ). Though many different rules and standards exist for the insanity plea and even though there are different interpretations for each of those standards, th ere is reason to believe that a more objective, reasonable, and understandable consensus on the definition of insanity is possible. Evaluating the current standards for the insanity defense and analyzing the interpretations of others who have assessed the insanity defense reveals several key qualities that exist in each of these different rules. First, and perhaps the most obvious, is the requirement for a verifiable mental impairme nt In blunt terms, there can be no insanity where there is no illness. This is true despite the fact that mental illness does not imply insanity. Instead, mental illness is merely a piece of a pu zzle that cannot exist without some form of evident cogni tive abnormality (White, 2017) Furthermore, this abnormality must be accompanied by a symptom profile that in some way results in an altered state of mind Not all mental illnesses are created equal. Some symptoms of mental illness will have no impact on an individual's reasoning skills or behavior and as such will have no bearing on a person's sanity, in legal terms, no matter how severe the symptoms may be. Consistent with each of the rules stated previously, the symptoms of the disorder must be powe rful enough to create a strain or limitation on the individual's ability to

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Stabilizing Insanity ) make appropriate decisions. This co uld follow the M'Naughten rule in the conceptualization of right and wrong, the conduct conforming standard of the irresistible impulse test, or the ability to attribute an action to the mental illness as recognized in the Durham rule. What is consistent within each of these rules, despite their differences, is that the nature of a given mental illness alters the ability of the criminal justice s ystem to hold the individual criminally responsible for their actions as a direct result of a mental impairment The Current State of the Insanity Defense The current system is flawed. Although the insanity defense has evolved over the years as a result of the ever changing public interpretation of insanity and mental illness there is still reason to believe that it is not as effective at finding truth th rough objectivity and reason ing as it should be. Furthermore, the current system does not take into account the needs of each party involved. The criminal justice system must process cases that involve this defense, and in this goal the system is effect ive. However, there are the needs of the adjudicated individual and the needs of the victim s and their families that are not being met sufficiently. The current model of the insanity defense follows a consistent path where the defendant can either be fo und guilty or they will be found not guilty by reason of insanity (Martin, 1998) Some states have admitted that this process is not entirely effective by establishing a verdict of guilty but mentally ill, or GBMI, that accounts for the role of mental ill ness but does not relieve the defendant from responsibility for their actions (White, 2017) This verdict is able to make the suggestion that the defendant is both in need of treatment for the mental illness and is in need of incarceration as punishment f or their crime. As such this verdict can provide the victim s and their families the closure and feeling of justice that can be missed when a not guilty by reason of insanity verdict is given. The victims, the public, and the criminal justice system beli eve that

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Stabilizing Insanity when a crime is committed punishment and retribution should accompany that crime. This is based on the normative standards established as a value of the American people who believe that all individuals are morally responsible for their actions a nd should be held accountable for them (Berman, 2007). This is why the public reacts so strongly to not guilty by reason of insanity verdicts. The public believe s that someone should be held responsible, meaning that some person and not a mental disorder should be held responsible, and the current system has left a bad taste in the mouths of those who seek a sense of justice (Jacewicz, 2016) This is because the current system does little to provide a consistent definition of insanity and refuses to acce pt or develop a more reasonable solution for the ambiguity of these situations The GBMI verdict provides the opportunity for the individual who committed the crime to be held responsible for their actions while still accepting the fact that mental illnes s was a major component in the development of the event (Berman, 2007) Those given the GBMI verdict are treated for the disease that undeniably played some role in the commission of criminal action and the individual is also punished for their inability to hold their behavior within that which is socially and legally accept able. Seeking the insanity defense is an admission of guilt in that the defense does nothing to refute the claim of the defendant 's role in the commission of the act, but instead suggests that the defendant was not responsible for the act (White, 2017) This means that the individual will either be found not guilty by reason of insanity or they will be found guilty, there is no gray area to cover a situation where mental illness played a role but cannot be held responsible A GBMI verd ict provides a gra y area to the insanity defense allowing mentally ill defendants the opportunity to establish mental illness as a factor in the case and possibly in the commission of the criminal act thus mitigating the circumstance s and opening the door for appropriate tr eatment

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Stabilizing Insanity !+ for the apparent mental disorder The intent of the GBMI verdict is a suggestion that the jury believes that the defendant would not have been as likely to commit the act had mental illness not played such a role in the event however, the jury al so believes that the defendant should be held responsible for the act due to the impression that the mental illness should not have debilitated to defendant enough to be the sole cause of the criminal act. To effectively employ the GBMI verdict the crimin al justice system must be charged with the responsibility of providing effective treatment options for mentally ill offenders The criminal justice system does participate in the provision of rehabilitation programs that include certain mental health car e options. However, the current standard of psychiatric care in the United States criminal justice system is not sufficient to make the GBMI verdict a reasonable solution to the issues cited by those opposed to the structure of the insanity defense. Effe ctive treatment options are those that are evidence based and can be reasonably assumed to keep the illness from playing such a significant role in the defendant's future specifically as it pertains to the likelihood of recidivism Co nsidering the curren t, and seemingly ubiquitous nature of mental illness within the c riminal justice system and the lack of programs that have displayed reasonable amounts of success at treating the underlying aspects of the typical criminal profile achieving positive result s from treatment within the criminal justice system can not be so easily expected (James & Glaze, 2006) In order to effectively treat GBMI convicts and the mentally ill inmates who are already within the criminal justice system, major changes would have t o be considered by the United States government C lear signs and evidence can be found to indicate and highlight the influence that mental illness has over the act of committing a crime for those are dealing with some form of mental disturbance. The current legal system is based on rules like the M'Naughten rule the Durham

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Stabilizing Insanity !! rule and th e irresistible impulse standard but these rules do not effectively account for the nature of mental illness and the role that it plays in the actions of a given indivi dual. As such, there is reason to believe that it is necessary to create a shift in procedure that allows the criminal justice system to appropriately evaluate the mentally ill in order to lead to more objective judgments of mental illness and criminal re sponsibility By making this change, the criminal justice system of the United States would be able to limit the errors created within the current insanity defense paradigm, it would find answers based on more informed interpretations of the evidence pres ented and it would be able to have an impact on recidivism rates as a result of the increased number of appropriately sentenced and treated inmates. A modified version of the current system that employs the techniques to establish the guilty but mentally ill finding would be a more rational means to evaluate criminal responsibility and treat the underlying causes of criminal action. Determining criminal responsibility, legal insanity, and the role of mental illness on a complete u nderstanding of mental illness supported by evidence from neurological imagery and abnormal biological functionality viewed through the lens of the traditional legal standards for insanity would allow judges and juries to come to a more a ccurate and tenable conclusion as to the role of an individual's mental disorder in the commission of a criminal act The Psychological Aspect of Insanity Defense Processing The criminal justice system must evaluate insanity and the role of mental illness in criminal action in the sa me manner in which the psychiatric community assesses disease. Regardless of the legal system's insistence upon separation from the psychological nature of insanity the findings on an insanity plea are inherently a claim of disorder and illness severity The ruling on an insanity plea expresses a statement, on behalf of the legal system, to the nature and quality of the individual's mental state. Whether the defendant seeking the insanity defense

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Stabilizing Insanity !# is found to be guilty, guilty but mentally ill, or not gu ilty by reason of insanity the legal community is making a statement about the evidence, the severity, and the influence that mental illness has in the life and behaviors of the defendant. With this in mind, it would seem to be apparent that a shift to a more systematic and scientific approac h to insanity is the most appropriate course of action This would mean that the criminal justice system would have to amend tr aditional legal procedures to help jurors understand mental illness and the role it can p lay in behavior The steps involved in this form of investigation would yield more objective results and accurate conclusions based on consistent and verifiable data. Employing consistent and organized interpretative methods to establish the basis for th e effects of mental illness according to the standards of the M'Naughten rule, the Durham rule, the irresistible impulse rule, a nd the concept of Mens Rea would improve verdicts in cases where the insanity defense is involved because they would be based on more than the traditional methods of debate, expert testimony, and jury deliberation. The new standard would be based on these same factors as the current model through incorporation of the current legal standards, but it would also include more objectiv e, verifiable psychological and biological understandings that can be used by the jury when attempting to understand the unique circumstances of a given case The importance of altering the current paradigm is evident when exploring the current standard on psychological impairment. As it stands, the legal system will accept almost any mental disturbance as grounds to invoke the process of the insanity defense (Schouten, 2012). Not only does this open the door for frivolous use of mental illness as a mitigating factor, but it also invites the negative public view on the insanity defense. Instead, the criminal justice system needs to close thi s loophole to only allow debate about an individual's sanity when the defense can provide sufficient evidence of a well e stablished mental illness or symptomatic construct

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Stabilizing Insanity !$ This syndromatic perspective adresses two major problems with the current insanity defense: the objectivity of the claim of insanity and the high risk of recidivism for mentally ill offenders. Incapacitation refers to the ability of the criminal justice system to use coercive force to restrict the behavior of an individual (Seigel, 20 15) The criminal justice system is charged with maintaining the safety of t he communities they serve, and with that in mind incapacitation of dangerous individuals is one of the fundamental duties of the Ame rican criminal justice system. However, one o f the other foundational goals of the criminal justice system is supposed to be rehabilitation (Siegel, 2015) The incarceration period is best utilized when it provides offenders with the means to rehabilitate and receive treatment for any issues that th ey may be facing. When the insanity plea is accepted, the psychiatric community takes on the process of incapacitation and rehabilitation (White, 2017) During this time period the psychiatric community is responsible for the rehabilitation of the menta lly ill offender, and the offender is not to be released until there is sufficient evidence to suggest that the individual is no longer a threat to public safety. This is why it is so important f or the illness and the symptoms to be understood fully befor e sentencing. If the illness or presenting symptoms of an in dividual are not understood before sentencing then the possibility for successful treatmen t and rehabilitation will not be as strong thus k eeping the individual in a psychiatric facility would take time and resources away from the rehabilitation efforts of other patients who have a greater likelihood of being successfully treated The cited disease or symptoms in an insanity defense must be understood and process ed p roperly because it is the only way in which the goal of rehabilitation can be accomplished. Placement in a psychiatric facility or a treatment program is meaningless if there is no ability to expect a positive outcome of treatment. The current system on e that is designed around an insanity defense that allows for any mental condition and only accepts a

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Stabilizing Insanity !% verdict of complete guilt or complete lack of guilt on the grounds of insanity do es not create sufficient faith in the use of the criminal justi ce system as the means for rehabilitation. Seldom can this binary perspective provide a true answer with effective sentencing outcomes when it does not account for every possible instance: guilt without mental disorder, guilt with present mental illness, and no gu ilt as a direct result of the incapacitating nature of mental disability. Ensuring that the jury is given the ability to fully understand the nature of the illness and presenting symptoms there can be a greater level of objectivity and understanding in the outcome of a debate over the defendant's sanity and the role of mental illness Currently, w hen the insanity defense is brought up in a case under the typical system there are no expectations for the disease or sym p tom profile (Schouten, 2012) Any i ndividual can claim that any circumstance altered consciousness enough to directly result in the criminal behavior, but this is a mistake on the part of the legal system. In the past the courts have admitted to this mistake through the creation of legal p recedence that have led to the exclusion of things like voluntary intoxication antisocial behavioral traits, and crimes of passion ( Schouten, 2012). To ensure that this issue does not continue to periodically arise the legal system needs to adopt a clear er and more consistent means for establishing mental illness. Requiring that any mental defect claimed in a court of law be an established and cata loged mental illness would force the defense to show e vidence that the defendant has an illness that is consistent with the established, scientific understanding of the disorder In effect, this c hange would mean that the defendant would have to fit the mental illness profile of the disorder that may or may not have played a role in the crime committed. Complete analysis of these factors would lead to more objective interpretations and verdict s on the presence of mental illness, but m ost important ly, by requiring the defense to establish insanity based on re cognized

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Stabilizing Insanity !& symptoms or mental disorder s there would be fewer question s as to what effect the disorder could have or what role it would play in the commission of an illegal action do to the greater understanding of the mental disorder and its symptoms. Altho ugh the scientific understanding of cognition and the results of cognitive abnormalities is constantly evolving based on new and emerging evidence and the diagnosis of an illness can be somewhat subjective there are standardized interpretations of known il lnesses and symptoms (Comer, 2015) Regardless of the crime being committed, the current understanding of mental disturbances can be applied to any case involving the insanity defense to help cr eate a more accurate depiction of the influences involved in the act. Only by following the course of an established disease or symptom s can the courts find a more rational conclusion about the role of cognitive abnormality. When the two psychological factors are combined the court system is left considering diseases that are established within the medical and scientific communities with the ability to be effectively treated, managed, or cured. This, of course, means that there is a finite number of mental disorders that can be considered when attempting to p roduce an accurate verdict about the nature of the effect of the illness on criminal responsibility and whether or not the specific mental disturbance rather than the individual is to blame for the crime that was committed While the truth is that this psychological standard would significantly limit the scope of the insanity defense as a means to identify criminal responsibility it recalls the idea of a guilty but mentally ill finding as an effective tool for the criminal justice system Applying this psychological standard looks much different when there is a third option for the final verdict of a court case. I nsanity can remain a concept defined by the rules of criminal intent, the standards of the knowledge of right and wrong, the ability to resist an impulse and the ability to attribute the production of the crime to the mental illness However i n this case, not guilty by reason of

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Stabilizing Insanity !' insanity would need to be shown as a mental impairment that robs the individual of the ability to conform their acti ons under one, if not all, of these standards. GBMI verdicts requi re individuals to serve out their sentence due to the fact that juries still find them criminally responsible for their actions (Berman, 2007) The idea that the defendant can still be he ld responsible for the criminal action is the factor that separates GBMI from insanity. Mental illness, as evident by the millions of American citizens living with mental illness who engage in no illicit acts does not automatically cause illegal activity As such, a claim suggesting that mental illness played a role in the crime does not inherently imply that the mental illness was responsible for the conduct of the person who committed the crime. In order to establish criminal responsibility the nature and effects of a mental disorder must be debated with analysis of the evidence of the mental illness, its known effects, and ultimately the nature of the individual's understanding of the act and the intent behind it (White, 2017) This means that the mental disorder or the presenting symptoms must be defined and established so as to create a clear understanding of what these symptoms are, the symptoms must have known expectations for how they might impact behavior, and the sympto ms must be significant enough to impair cognition if insanity can be a reasonable conclusion. If these conditions are not met, then the only verdict that can be found would be one that places criminal responsibility on the individual who committed the cri me. Whether this is a simple guilty verdict or a guilty but mentally ill verdict depends on the ability of the defense to provide evidence of a disorder The guilty but mentally ill verdict is intended to be used as a verdict that ensure s that the defen dant is given the proper rehabilitation programs for their specific situation when a significant mental illness is evident (Berman, 2007) Different mental disorders have different

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Stabilizing Insanity !( treatment needs and far too often the traditional criminal justice system has not been able to accurately account for these difference by providing effective treatment and rehabilitation programs. Utilization of the GBMI verdict would suggest that the individual who committed the crime is still responsible for their behavior, b ut the GBMI verdict is also a concession on behalf of the court system suggesting that there is sufficient reason to believe that the mental illness may have played a significant role in the circumstances that led to the crime The criminal justice system has a duty to treat the underlying mental illness because of the effect that it may have on criminal activity. If the illness may have influenced the factors leading to one criminal act then it is reasonable to assume that the illness could l ead to anoth er criminal act. In order to maintain the safety of the public as well as to provide the defendant with a true opportunity to successfully rehabilitate the mental illness must be treated and the symptoms must be managed so that they will not have such in fluences on behavior in the future. The R ole of Specific Symptoms and Disorders Insanity, in the legal context, should be evaluated similarly to the way in which disease is considered in the psychiatric community. T he current criminal justice system does not allow a defendant to be found legally insane without the presentation of some form of mental disorder (Ringer & McCormack, 1977). Considering the verdict structure of the process of evaluating insanity, which results in either inc arceration or treatment based on the understanding of the presenting illness, it is an inherently diagnostic process The defendant will either be found to have an illness that can reasonably be held responsible as the cause of the criminal action due to the evidence suggesting its effect or the defendant will be found guilty because the illness will have been deemed insufficient to be the cause of the action. Since the process makes a claim on the nature and quality of the mental illness and since the re sult of the verdict dictates the

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Stabilizing Insanity !) treatment received by the individual who is more than likely suffering from some form of disorder regardless of if that disorder caused the criminal act t he current methods of evaluation allow for too much subjectivity. Ad mittedly, there is reason to allow for subjective analysis on the evidence presented because it a llows the jury to interpret the circu mstances and develop a unique understanding of the defendant's mental health, its influences on behavior, and its influenc es on the crimin al actions involved in the case (Schweitzer & Saks, 2011) The use of expert witness testimony from qualified psychologists and psychiatrists is a reasonable and necessary aspect of defendant evaluation as well These individuals are highly trained in their field and are better suited than anyone to evaluate the nature and influences of an individual's mental disturbances (Schweitzer & Saks, 2011) However, the nature of the role of these expe rts is also subjective. T he role of an ex pert witness comes with a strikingly high potential for the influences of bias. This is not to say that the opinions of these experts are inherently biased, in fact, the suggestion is just the opposite. The justice system is designed to reach conclusions that are justified based on the evidence presented. With that in mind, prosecutors and defendants both utilize the sources of evidence that best suit the case that they are building. As such, if the prosecutor can find an expert that supports the argume nt being made they would be willing to exclude other experts in favor of the one that agrees with their argument. The same goes for the defense. The use of specific experts does not suggest infidelity in any way, merely that the presenting symptoms and d isorders within abnormal psychology can sometimes be subjective and open to interpretation. While one psychologist may see a cluster of symptoms and see no conclusion other than one specific disease another psychologist may view that same cluster and reco gnize that a specific symptom is highlighted and may be influencing

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Stabilizing Insanity !* the presentation of the others thus this psychologist would come to a different, yet equally valid, conclusion. Considering the characteristics of the current forms of evidence from the psychological community the criminal justice system must outline clear, well defined, and consistent standards by which defendants can be evaluated for the influences of mental illness and cognitive disorder This means that in addition to expert witness analysis and testimony from qualified psychological and psychiatric professionals there must be objective rules and guidelines that provide a consistent outline for and a consistent method for interpreting evidence of an individual's sanity The first st ep in creating these objective standards is to categorize the disability being claimed by the defense. The Victorian Law Reform Commission of Australia has recognized the issues involved with the M'Naughten standard and has taken steps to help change the ir county's doctrine to reflect the need for reconsideration of this standard by establishing categories of mental illness or mental impairment that include psychotic illness, depression or depression related illness, IQ related illness, personality disord er, and alcohol or drug abuse (Bennet & Hacker, 2011). The United States judicial system would do well to create categories of their own that would define the quality of a mental impairment being claimed in an insanity defense. Requiring the defense to provide a statement of the type or quality of the mental impairment being claimed would initiate a process that would determine the direction of the entirety of the case in question. In a system with categorized mental impairment, the defense would need to do more than simply suggest that the defendant was under the influence of a mental disruption at the time of the criminal action and more than simply provide a definition of what that impairment was or how it influenced behavior. Instead, the defense would be required to place the mental impairment into

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Stabilizing Insanity #+ an established category that had been previously defined by the efforts of the legal and psychological communities that had included within it a series of reference points that wo uld serve to outline the necessary provisions of the evidence that would support the claim of that specific mental disorder. A categorized system for evaluating insanity would create an outlined process that would organize the presentation of evidence, di ctate what evidence would be meaningful, and would suggest how that evidence should be interpreted serving to make the evaluation and understanding of the illness more objective. By any estimation, these c ategories would need to include stipulations for disorders that are psychotic in nature, those that affect cognition through alterations of judgment or reasoning, and those that affect behavior through compelling influences. Accounting for these disease groups allows for an outlined process of evidence presentation and interpretation for the diseases most commonly associated with significant influences on behavior, affects on the capacity to understand right from wrong, and thus have the greatest likelihood of being reasonably held responsible for crimin al behaviors. There are several diseases that have been classified in psychological science that show the underlying factors that could influence behaviors for the three categories of mental impairment that affect an individual primarily through psychotic effects, cognitive alterations or compelling influences In relation specifically to the ability of the disorder to create or significantly influence criminal behavior, the disorders that can be used most readily to understand how the standards of evalu ation are to be created for these categories include schizophrenia for the psychotic category, Attention Deficit/Hyperactivity Disorder for the cognitive alteration spectrum, and Obsessive Compulsive Disorder for the compelling influence category. Further more, there are s ome disorders that have symptomato logical expressions that allow them to alig n with more than one category. Bipolar Disorder is an

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Stabilizing Insanity #! excellent example of the kind of disorder that can present itself with drastically different symptoms at di fferent times throughout the course of the disease C ertain aspects of a disease and different interpretations of the presenting symptoms can led the defense to believe that the evaluative and interpretive measures of a certain category could plausibly fit the defendant's situation despite the fact that the disease would seem to be more readily applied to another category In a case in which the disorder, or its symptoms, can reasonably be evaluated by the standards of any or a ll of the categories the defense must choose one category to which the mental impairment will be applied. Truly, this would happen regardless of the disease or its symptoms. The defense must indicate which category will be used when evaluating the impair ment, but there is no reason to force the defense to be evaluated by criteria that they do not believe suits their situation. This is because the defense will be providing the evidence to support their claim while the prosecution will be providing evidenc e to reject this claim. With established evaluative criteria for each category there is no need to force a disorder or s ymptom into a specific category because the goal is to reach a more justified, reasonable, and objective conclusion. The defense shou ld be allowed to be adjudicated under the preferred measure if a disorder impacted behavior under one system of evaluation, but not another. However, it is up to the defense to choose the category that they believe has the best fit for their situation as they are expected to best understand the na ture of the impairment. There sh ould be no grounds for a mistrial based on category selection when the defense selects the criteria, but the same cannot be said when the evaluative and interpretive measure is a f orced choice.

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Stabilizing Insanity ## The Psychotic Features Category In order to establish a categories of evaluation the legal system should start by analyzing the current understanding of psychological disorders, many of which themselves can be placed into similar categorie s. One of the most common disorders associated with abnormal behavior and cognitive impairment is schizophrenia. Schizophrenia is a disorder with a primarily psychotic symptomatic expression, but it affects those who suffer from it in many ways. Schizop hrenia is truly more of a spectrum disorder that is represented by the unique situation of each individual suffering form it than it is a disorder with clear lines of definition (Lyons & Martin, 2014). Schizophrenia, as with any psychosis, results in the loss of complete connection with reality (Comer, 2015). Whether through positive symptoms like delusions and hallucinations or through negative symptoms such as inappropriate affect or catatonia the person with schizophrenia has become perceptually and be haviorally abnormal (Lyons & Martin, 2014) This means that the understanding and connection to the real world is in flux. This is the highlight of the criteria by which the psychotic category of insanity should be based because an individual's grasp on reality and their place in it relate directly to their ability to properly and completely understand their actions. The psychotic features category suggests that all evidence of mental illness and its influences on criminal action should be in reference to and interpreted through the understanding of how the individual was separated from reality by the illness and how that separation took away the ability to properly conform behaviors within the rule of law. This category relates first and foremost to the M'Naughten standar d and its provisional statement on Mens Rea. Mens Rea suggests that there is no crime where the re is no ability to understand the wrongfulness of one's behavior or there is no intent to commit an unlawful act (Francone, 2016).

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Stabilizing Insanity #$ The evaluation of the illness and the evaluation of its influence on the criminal act that resulted in the court case shou ld be considered separately. By establishing a mental impairment that fits the perceptual qualification s of the psychotic features category the defense is not providing evidence of the mental impairment s influence on behavior and the same can be said of each of the other categories That is to say that the evidence to meet the qualifications to enter a plea of insanity under a given category is separate from the evidence supporting a verdict of not guilty by reason of insanity. These are two separate e vents and meeting the qualifications for having the illness evaluated under a given category does not mean that the individual will have a verdict that finds the illness responsible for the crime. Meeting the qualifications for a category only means that the insanity plea has be substantiated and the case may continue with the understanding of what evaluative tools will be used and how future evidence will be interpreted based on the outline of the category chosen. However, it is important that the mental impairment presented by the defense meet this qualification because it establishes the ability of the defect to limit the defendant's capacities If the impairment presented by the defense cannot stand up to the scrutiny of the category's qualification t hen there is no case for insanity under the chosen category. The individual positive symptoms of schizophrenia can be further reduced and understood for the impacts that they may have on perception and behavior. Under this category the defense will have t o elaborate on the exact nature of the defendant's symptoms and describe how they impacted behavior at the time of the criminal action. Two of the most commonly known positive symptoms of schizophrenia are hallucinations and delusions (Comer, 2015). Hall ucinations can have many expressions in the ways that they can affect the sensory system by creating feelings and sensations that are not truly in existence. Delusions, as well, have many

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Stabilizing Insanity #% different expressions and can affect the individual in terms of alt erations to what they believe and how they believe they are viewed in the world. What is important under this qualification of the disorder is not what symptoms are present or how they express themselves. What is important is that the defense provides su fficient evidence that there was a perceptual abnormality caused by the disorder and there must be evidence of how that perceptual abnormality influenced the individual and resulted in the criminal action The defense will need to illustrate, likely throu gh a process of deductive reasoning, how the symptom led the defendant to criminal behavior As with any disorder, the court must remember that there are many people who exhibit these symptoms or live with these disorders, but not all of them commit crimi nal acts. By exposing the nature of the defendant's alleged impairment the defense opens a discussion for the jury and the court to decide whether or not these symptoms could and did have an effect on the event in question. Evidence of hallucinations or evidence of delusions could be supported by the statements from the defense at any stage of the trial, but debate over the role that these impairments may have had on the criminal action must occur after the impairment has been established and the evidence to connect the illness to the crime has been presented The Cognitive Alterations Category The cognitive alterations category is distinguished by the way in which the individual s typical thought processes have been affected by some form of mental impairment. This means that as a direct result of a disorder, its symptoms, or the overall impairment there would be sufficient reason to conclude that the individual had been led to commit a crime that they other wise would not have committed had there been no alteration to their cognitive abilities. The cognitive functions that would most likely be connected to criminal actions consist of alterations to rational processes, acts requiring judgment, or any process of evaluation or analysis,

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Stabilizing Insanity #& specifically those related to the analyzing the costs and benefits of pursuing a certain course of action. Under typical circumstances, attention deficit/hyperactivity disorder, or ADHD, would not be an acceptable defense under the insanity plea, but ADHD provides an effective basis from which one could draw the defining factors of the cognitive alterations category. ADHD is a disorder that leads individuals to act in inappropriate ways do to an inability to focus, an inabilit y to inhibit certain behaviors, and an inability to resist the temptation to be distracted by unimportant stimuli (Comer, 2015). There are many symptomatic expressions of ADHD that all seem to revolve around limitations of the executive functioning provid ed by the prefrontal cortex of those who suffer from this disorder ( Lyons & Martin, 2014). The connection between this disorder, the region of the brain assumed to be affected, and the resulting changes in behavior through deficits in reasoning and judgme nt are what separate this cluster of symptoms and allow them to be isolated as a category of their own. Although the psychotic features category can be said to affect the individual's judgment and reasoning in similar ways, the nature of the disrupted rat ional pattern is caused by a break from reality or a perceptual abnormality that is not consistent with the cognitive alterations c luster. Cognitive alterations in this sense are attributable not to a perceptual abnormality that may have roots in the al tered functioning of the neural network, but are instead able to be ascribed to the dysfunction of the neural structures utilized in the processes of thinking, rationalizing, and evaluating. ADHD becomes such a good example for this category when it is e valuated for its influences on behaviors. The prefrontal cortex has long been associated with the type of functioning that brings people to organized, rational, and reasonable behaviors ( Myers, 2014) It is this area of the brain that restrains people wh en in certain company or in certain situations. It is this area of the brain that evaluates the risks, the costs, and the benefits of certain behaviors in

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Stabilizing Insanity #' given situations. It is this area of the brain that has been shown over numero us studies across tim e to rationalize, justify, and consciously think about behaviors, both behaviors that have been performed and those behaviors that have yet to be performed. Disorders such as ADHD have a negative impact on the ability to make appropriate choices based on the expectations of the situation in which individuals finds themselves. This is why some many children who suffer from ADHD have trouble in school, are frequently at odds with their parents, or have received treatment for the disorder (Comer, 2015). As with the psychotic features category, the cognitive alterations cluster can be associated with the current rules of the insanity defense When the defense seeks to establish insanity based on this category of mental impairments the debate will typically involve a discussion of Mens Rea and M'Naughten Mens Rea is a standard based on criminal intent while M'Naughten suggests the capacity to understand right from wrong and this category of mental im pairment suggest s that the individual was completely incapable of knowing right from wrong based on the alterations to rational, judgmental, and other evaluative processes. W hat is being suggested when the mental illness fits into this category is that the individual was impaired by mental illness to the po int that they would not be able to appropriately conform their actions to the typical societal norm. The cognitive alterations category is a suggestion that, through mental impairment, the individual was incapable of conducting proper actions as a result of a distinct and evident flaw in the natural thought process. The disorders and symptoms that fit this category of impairment alter the evaluative tools available to the individuals who suffer from these disorders and symptoms. As such, the individual's ability to resist the urge to act inappropriately, the ability to recognize natural and manmade deterrents to inappropriate

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Stabilizing Insanity #( behavior, and the ability to realize alternative solutions to perceived problems have been compromised. There is an assumption su ggesting that any one of these categories of mental impairment may yield different likelihood s for the defense to garner a verdict of not guilty by reason of insanity. Although each case, each defendant, and each disease will be evaluated for its unique c ircumstances there may be concern over which category gives the individual the best and worst chance of having a successful defense However, the most likely outcome for each category is a verdict of guilty but mentally ill. This is a designed phenomena and it is a completely acceptable result for these cases. The guilty but mentally ill verdict in this system is the preferred verdict because it allows the criminal justice system to hold the individual responsible, seek retribution on behalf of the victi ms, and provide the defendant with treatment for the underlying disorder. The goal of mental impairment categorization is to find more objective and consistent results. The goal is not to provide all people who suffer from mental illness and commit crime s with a track to impunity. The primary reason behind the hope for a change to the traditional evaluative measures of the insanity defense is an increase in appropriate treatment for individuals who are suffering from mental illness and have shown a tende ncy to threaten the public sphere through criminal action. If the criminal action can be reasonably attributed to the mental impairment, that is to say that treatment for the mental impairment would reduce the likelihood of criminal actions in the future, then the court system must have a means to process such cases. Funneling insanity cases towards the GBMI verdict accounts for mental illness by providing treatment for the defendant, but it also allows the court to hold the defendant responsible for thei r actions. The Compelling Influences Category

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Stabilizing Insanity #) The next class of mental impairment that must be accounted for relates to those disorders which create an exceptionally compelling impulse. It is the nature of these impulses that define and outline the na ture of this category. One could say that any crime was done out of impulse or snap judgments that are based on the strongest desire in mind at the time of the crime committed, but what separates this category from the normal impulses that create criminal action are the factors that create and influence the strength of the impulse. An individual may rob a bank out of the desire for the money held within its walls, but greed and a lust for wealth is not in and of itself a compelling, irresistible influence Furthermore, greed and the desire for wealth are not mental impairments, in fact the desire for financial security is fairly common among human beings. It is this idea that guides the creation of the standards for this particular category. The basis f or the strength and compelling nature of the impulse must be weighed against the typical expectation for the power of the same impulse for the typical individual. It can be assumed that any crime committed has something to be gained for the individual wh o commits the crime. It can also be assumed that there are numerous if not countless individuals who had the same impulse to commit the same crime all of which did not commit the illegal act. The defense, under the standards of this category, are attempt ing to show how and why the impulse in this specific case was so exceptionally compelling for the individual who committed the crime. The category of exceptional impulses has several requirements to establish this compulsion. First, and foremost, is the need for a mental impairment. Without the defense having some mental impairment to point to as the root cause of the criminal act then there can be no exceptional compulsion. This is because the court can assume that any person experiencing no mental def ect should feel no impulse so great that it compels a person to act outside of the norms of society. Second, the defense will have to show how the nature of that mental

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Stabilizing Insanity #* impairment drove the person to commit the criminal action. This means that the defens e will need to provide evidence that shows and explains how the individual was driven to act in such a way. In essence, an exceptional compulsion follows the construct of the irresistible impulse standard of the insanity defense, and the exceptional compu lsion category should be primarily viewed through the lens of this standard. While the irresistible impulse standard is a suggestion that the individual would have still committed the criminal act knowing that they were going to be caught and punished for it, the concept behind the exceptional compulsion category is the idea that the mental impairment forced the individual to act in a way that they would not have acted if the forces driving the individual to act were not as strong. The benchmark disorder t hat most accurately describes the nature of these exceptional compulsions is Obsessive Compulsive Disorder, or OCD. OCD is characterized by an infectious or unavoidable thought that causes heightened anxieties that can only be resolved by certain actions (Comer, 2015). The disorder creates a reciprocal process of agitation, relief, and reinforcement that the individual cannot avoid. The anxiety is caused by the obsession over a thought or a fear that drive s the individual to be compelled to perform some action that they feel will resolve their anxiety. With each successfully completed cycle of anxiety, compensatory behavior, and relief from anxiety the association between the relief of the negative feelings and the behavior that induces the relief become s stronger. As the association becomes stronger, the force driving the need to perform the behavior to solve the anxiety becomes more compelling. In this way the mental impairment is taking control over the individual's behaviors. The individual would m ost likely prefer not to perform these behaviors, in fact the loss of control and loss of choice over behavior is what often drives individuals to seek treatment for OCD. As such, exceptional compulsions can be seen as the symptoms of a mental impairment that afflicts the

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Stabilizing Insanity $+ mind in a way that causes the p erson to loss control over their actions. Just as the individual who cannot control the spre ad of cancer through their body' s tissues, the person afflicted by this type of disorder loses control over their behaviors. The difference between the nature of OCD and the circumstances typically present for those falling into the compelling influences category is one of frequency. OCD is a disorder that constantly afflicts the individual and typically does not involve criminal behaviors. The compelling influen ces category is used to identify mental impairments that create a brief, momentary, and overpowering coercion. This means that OCD may form a pattern of behavior for the individual while those impairments that fall under this classification will more comm only be expressed without such patterns where the circumstances surrounding the crime interacted with the illness to create the impulse and coercive force. However, t he disorders and symptoms that can be applied to the category of exceptional compulsions must act in a similar way to OCD The defense must show evidence of not only the disorder or symptoms that drive this exceptional compulsion, but they must also show evidence of this overwhelming feeling or emotion that can only be relieved by commission of the compensatory action. That is, the defense must show that the criminal act was the direct result of the coercive effects of the disorder. This rule places the exceptional compulsion category in a separate space than that which can be evaluated by strict adherence to the M'Naughten rule and Mens Rea. In these cases the individual is could be able to know and understand right and wrong and thus must be evaluated by a more fitting standard that accounts for this awareness. In cases of exceptional co mpulsion the most important factor is not whether the defendant knew that their actions were wrong or illegal. What is important in cases of exceptional influence is the idea that the mental impairment can create influences so strong that regardless of ri ght or

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Stabilizing Insanity $! wrong and regardless of whether or not the defendant knew they would be caught and prosecuted the action would still be committed. Categories of Impairment in Conclusion. By defining these three categories for mental impairments the court system wil l be creating three different paths that can be taken by the defense for their insanity plea. Logical deductions and inferences from the established patte rns could suggest which path would best suit which disorder While this may seem to suggest that the re is room for manipulation or playing the system to attempt to find the best path to impunity, the true goal of this mental impairment categorization process is to help find the most consistent and objective verdicts possible. To put it simply, some impa irments do not fit certain categories regardless of how the disorder is presented or argued. To further complicate the process there are some disorders that can be reasonably applied to any of the three categories that have been outlined. The concern over defense lawyers manipulating the presentation of a disorder to fit a certain category and find a certain verdict for their client is reasonable but unfounded. Despite the fact that the defense could choose any category that they deem suitable, the abilit y to show enough evidence of insanity does not change from category to category. What does change is the understanding and the evaluation of the influence that an illness had in the commission of a criminal act. These categories do more to help jurors un derstand and interpret the evidence presented than it does to show attourneys how to reach a certain finding. Illuminating the way in which a trial would be impacted by a single disorder being evaluated under any one category, bipolar disorder can reasona bly be applied to each category with equal chances for success or failure depending on the presenting symptoms at the time the crime was committed. Bipolar disorder has the ability to compel an individual to behave in

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Stabilizing Insanity $# abnormal ways that they otherwise w ou ld not choose to behave in, bipolar disorder can create a deficiency in the cognitive tools for evaluation and judgment, and bipolar disorder can put a person out of touch with reality in a way that causes them to no longer have the capacity for understand ing the true nature and quality of certain actions (Comer, 2015) In a case in which an impairment like bipolar disorder is cited as the cause of criminal action the circumstances that determine which category of mental impairment is most appropriate shou ld be based on the symptoms that were presumed to be at play at the time of the criminal action. Regardless of which symptom was present or which category represents the circumstances surrounding the situation, the case of the defendant's sanity will revo lve around what can be shown was occurring at the time of the criminal action. Regardless of which illness is cited this will be the greatest challenge for the defense. Regardless of the steps or the evidence necessary to prove the influences of the impa irment there will be a standard path followed by the defense. The defense will have to choose which category fits the evident symptoms, they will have to show evidence of the disorder, and they will have to meet the qualifications of the category and the y will have to show evidence of how the illness impacted the individual's behavior at the time of the criminal action Bipolar disorder may be most readily understood as a cognitive alteration or an exceptional compulsion Certain symptoms of the disorder seem to mark it as the kind of disorder that alters cognitive functions in a way that primarily impairs reasoning or judgment but the same symptoms can be said to influence impulses by highlighting desires while eliminating inhibitions and alternative courses of action (Comer, 2015) This is particularly true for those cases in which the defendant was in the midst of a manic episode during the crime. Although it has many forms and representations, mania is a state of upheaval. Mania leads many

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Stabilizing Insanity $$ people who suffer from it to make irrational decisions based on heat of the moment' thinking that leads them to seek out new and sometimes dangerous experiences, feel a sense of irrational optimism that makes them believe that they can do things tha t the y normally would not consider, or even feel so invulnerable to consequences that they would make poor choices under the assumption that they will inevitably overcome any problem that arises (Comer, 2015). Bipolar disorder can also lead to a diminishe d need for sleep which, with a long enough duration, can be connected to cognitive deficits that specifically relate to judgment and forethought (Lyons & Martin, 2014). This set of symptoms would require that the defense show some kind of evidence that th e defendant was in a state of mania at the time of the criminal action, but that alone would not be enough to establish insanity. The path of cognitive alteration is strewn with pitfalls for the defense to establish insanity because it is the most d ifficu lt to understand and prove On the other hand, the exceptional compulsion category is not readily convincing either. For the manic symptoms of bipolar disorder to show insanity under the cognitive alterations category, the defense would need to cite and continually refer to the standards of the M'Naughten rule and the Durham rule. According to the Durham rule, mania could be the mental illness that produces the criminal action but without some evidence that satisfies the M'Naughten standard of knowledge or understanding of right and wrong there would not be enough evidence for a true finding of not guilty by reason of insanity. The exceptional compulsion category, however, would follow the standards of the Durham rule and the irresistible impulse test. To establish insanity under this path the defense would still need to show evidence of the mental illness which produced the criminal action, but they would now need to show that the manic episode in some way influenced the decision making process resulti ng in the choices that created the criminal act. This would mean that the exceptional

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Stabilizing Insanity $% compulsion and the irresistible impulse were the manic feelings themselves. The defense would need to convince the jury that the mania took over the person afflicted by it and drove them to behave in the ways that they did. In this case criminal responsibility would be on the mental disorder because the person was not in control, at least not in the conventional sense. Instead, the power and influence of the manic epis ode in essence created impulses, compulsions, drives, and motivations that do not characterize the defendant when not in a manic episode. Regardless of which of these two paths the defense chose, they would suggest that if treatments were able to stabiliz e the mood of the individual there would cease to be manic episodes and thus no more mania induced behaviors. The trial of a bipolar individual claim ing psychotic features as the basis for their insanity defense would look much different than the previou s two paths. Under this standard the defendant's illness would be evaluated for the way in which they are separated or detached form the truth of reality. The most significant symptom present in individuals with bipolar disorder that accounts for this se paration would be delusion al beliefs Whether these distorted perceptions and beliefs are created or even connected to the depressive or manic stages of bipolar disorder is not consistent for each individual. However, there is consistency between present ations of delusions and the resulting delusional behaviors. Delusions are beliefs or sets of beliefs about the nature of reality that are not empirically validated (Comer, 2015). These kinds of delusions can lead individuals to believe anything from the idea that they are persecuted by others to the idea that they are cosmically significant or exceedingly powerful (Lyons & Martin, 2014). In a case such as this the focus would not be on the disorder as a whole, but on the specific symptom being proposed as the catalyst for the criminal behavior. With the nature of

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Stabilizing Insanity $& the symptoms in mind the defense would seek to establish the basis of the sy mptom and then provide evidence for the way in which it impacted the defendant's behaviors. This case would most likely satisfy the Durham rule, but the case would need to answer questions with an aim to satisfy the M'Naughten standard and the nature of M ens Rea. The ability to establish the understanding and knowledge of right and wrong would directly relate to the nature of the delusions, but Mens Rea and the nature of criminal intent may play a role as well. Delusional beliefs may create a n adherence to the idea that what the individual is doing is right or that it is not a crime but it may also make the individual believe that what they are doing is morally acceptable even though they know and understand that what they are doing is technically crimin al. How the defense chooses to go about establishing insanity in any kind of case is dependant upon the nature of the evidence at hand. Not every case is going to look the same even when the disorder presented by the defense is similar. Nevertheless, i t is imperative that the standards by which the defendant will be judged be consistent. By establishing set categories with direct paths through which the defense will be challenged the court system will be able to provide an objective and consistent face for the insanity defense. The defined category system will allow the justice system the opportunity to have an outlined and viable means to establish insanity based on previously established syndromatic methods of evaluation that can be supported by the kinds scientific evidence and exp ert testimony that will leave fewer questions in the minds of the public as to why a defendant was given the verdict that they received. The Durham Rule and the Categories of Impairment Although each category has a designed set of evaluative measures, each tool for evaluating insanity in today's criminal justice system may play a significant role in finding

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Stabilizing Insanity $' insanity in this new system. The change in processing insanity cases revolves around the creation of a more consistent and objective process that will yield more consistent and understandable verdicts. The hope is that no longer will arbitrary borders between states define whether or not an individual is found insane and that different juries, or the jury and the public for that matter, will no longer reach different conclusions about the nature and quality of an individual's sanity. To continue this trend, the criminal justice system must incorporate the Durham rule into this process of evaluation. Although the Durham rule has been more or less abandoned due to its seemingly loose and unrestrictive evaluation of mental illnesses and insanity there is still a role for it in these cases. The Durham rule suggests that the criminal act must directly result from the mental illness, and in this way the Durham rule is an effective tool for establishing the grounds to find a not guilty by reason of insanity finding. The Durham rule alone is a weak barrier between sanity and insanity, but when it is moved into position to separ ate those who are guilty but mentally ill from those who are not guilty by reason of insanity the rule creates a more thorough means of evaluation. The Durham standard can be used to further separate the grounds of evidence into a third and final dimensio n. The processing of the case to this point has focused on establishing the illness and establishing the effect it has on individuals and their behaviors. The final method of evaluation becomes a meaningful interpretation of evidence suggesting how the mental impairment created or produced the crime. The Durham rule by its nature does exactly that. The Durham rule can act as the final threshold between verdicts to establish that the mental illness can or cannot be held responsible for the criminal acti on. By satisfying the criteria of the Durham rule a defendant can be found not guilty by reason of insanity, but without satisfying the Durham rule this finding cannot be validated. If the illness cannot be shown to create or produce the criminal

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Stabilizing Insanity $( action on its own then the individual must be held responsible regardless of the severity of the illness. This speaks to the importance of the GBMI verdict. Under normal circumstances insanity is a debate between incarceration and treatment or hold the individ ual responsible or claim that the mental illness is responsible. By including the GBMI verdict the door opens to allowing the defendant to be held responsible while still being given treatment. This is important due to the positive correlation between th e severity of the illness and the insanity finding in the current model (Schouten, 2012). The current system with only guilty and not guilty by reason of insanity sets the stage for a debate not of the role and influences of illness but on a debate of the need for treatment. Having only two options can sometimes force the hand of jurors and judges who believe that treatment is needed for severe cases or severe disorders. If these individuals find the illness of the defendant to be so great then they will lean towards a finding of insanity and towards treatment when in fact the individual should have been held responsible then the finding will be tainted. Without the GBMI verdict the criminal justice system is unable to find truth in every case due to the constraints of the debate on either incarceration or treatment. Future Sources of Evidence for Insanity and Rehabilitation The research currently being conducted by psychologists, psychiatrists, and other scientific professionals in regards to the evidence of mental illness coming from analysis of biological structures and functions is evolving, but it is less than absolute. As a result, at this time the scientific community is unable to provide conclusive evidence of the connect ion between certain biological abnormalities and a concurrent mental disorder Strong connections have been made between certain brain regions, gray and white matter volumes, and the resulting functions of the brain (Nery, Monkul, & Lafer, 2013; Sohn et. al. 2014; Kuroki et. al., 2017).

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Stabilizing Insanity $) However, there is a significant issue being faced by neurological researchers, and it is one of consistency of findings that lead to accumulated support. To put it simply, while there does seem to be an association betwee n the structural and functional abnormalities of the brain and mental illness there is no conclusive evidence that can be poin ted to as an absolute and defining characteristic for all individual s Despite the fact that there has not been any proven link to certain brain abnormalities and mental illness, there is a growing number of researchers investigating the connections between mental illness and brain alterations. In the past certain research has revealed connections between the differences in regi onal gray and white matter volumes of the brain for individuals suffering from obsessive compulsive disorder (Gilbert et. al. 2008; Valente et. al., 2005) while other studies have revealed the same phenomenon of gray and white matter abnormality across ce rtain regions of the brain for patients suffering from schizophrenia (Kim, Kim, & Jeong, 2017; Sohn et. al., 2014). The fact that these results come from studies with small sample sizes and occasionally produce conflicting results contribute to the reason as to why these findings still fall short of conclusive evidence. Nevertheless, the case to create new theories of understanding is growing, and it will be important for the criminal justice system to be mindful of the potential that scientific evidence has for informing legal decisions. Of particular importance to the criminal justice system should be findings like that of Noriomi et. al. who examined 57 patients with a history of schizophrenia for the differences in their brain structure (2017). For t his study the researchers wanted to examine the differences in brain structure that might have played a role in certain behaviors exhibited in the past, specifically behaviors of a serious and violent nature. The participants in this study were grouped in to one of three categories represented by those without a history of violence, those

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Stabilizing Insanity $* whose violence was considered impulsive, and those whose violent acts were considered premeditated. The researchers thought that they would see significant differences in brain structure in the form of regional gray matter volume differences between those who had been violent and those who had not been violent, but the researchers also wanted to know what differences could be seen in the brain volumes of those whose violen ce was impulsive and those whose violence was premeditated. As they had hypothesized, the researchers found evidence suggesting that the brain volumes of violent and non violent schizophrenic patients were different. Furtherm ore, the brains of premeditated, violent patients and impulsive violent patients showed differences in specific regions as well. The findings of this study are of particular interest because of the nature of the violent acts. In many court cases the pro secution will use planning as a means to establish Mens Rea, or criminal intent. This is true in the case of James Holmes where the prosecution attempted to refute the insanity plea on the basis of Holmes' extensive planning of the harrowing act s he commi tted in Aurora, CO (Keneally, 2015). The defense contended that despite the thoroug h planning of the crime what was important in this case wa s not having a plan or lack ing a plan as a means to establish insanity, but instead it is the nature of the cognit ive function s that proceeded and led to the crime that mad e the in dividual either sane or insane (Keneally, 2015). In this instance the defense is stating that if the manner of thinking creating a plan is disordered then the plan and the actions to carry it out are the product of one's illness and stem from an inability to conform to the expected standards of behavior, thus cannot also suggest clear and unimpaired thinking The results found in the study by Noriomi et. al. suggest a biological basis for t he ability of schizophrenic individuals to commit violent crimes as well as to plan them out (2017).

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Stabilizing Insanity %+ Although the illness of schizophrenia does not always present with consistent symptoms, behaviors or criminal a ctions it is possible that the alteration s in brain matter volume could have an influence on the behaviors of individuals with the disease. These influences may come from a biological level, from a genetic level or both (Dries et. al., 2016; Sohn et. al., 2014) I n the spirit of the traditiona l standards of legal insanity an individual should not be held responsible for actions that are cause d by an impairment of understanding or are caused by the influences of a mental illness that exert a compelling impulse These represent the underlying se ntiments of the M'Naughten rule and the irresistible impulse test respectively. Research conducted by Dries et. al. provides a mechanistic explanation for the way in which schizophrenia can lead to changes in brain structure and how thes e changes in brain structure could produce the behaviors that are often exhibited by patients with schizophrenia (2016). By examining the differences between three groups of mice that were produced and placed into groups based on genetic sequencing and verification of the lack of the nicastrin y secretase enzyme receptor, which is responsible for oligodendrocyte production and the resulting myelination of brain matter, these researchers gathered evidence of behavioral differences that are associated with genetic and biologi cal abnormalities. These mice were observed in the experimental setting, and the group completely lacking the enzyme receptor, the homozygous genotype group, was shown to have more common displays of the hyperactive and exploratory behaviors commonly exhi bited by mice with schizophrenic patterns. Furthermore, unlike the other two groups, homozygous with the receptor and the heterozygous with the receptor, this group showed signs of excessive grooming that led to patches of irritated flesh around the nape of the neck. To account for concerns over the generalizability findings to humans, the researchers gathered nearly 1,300 human participants to be grouped by mental health status and evaluated for their genetic circumstance. This aspect

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Stabilizing Insanity %! of the study provi ded evidence of a conn ection between schizophrenia and its typical hyperactive and compulsive behaviors with the genetic sequence known to result in deficient nicastrin y secretase. Although the research is preliminary, the work by Dries et. al. suggests that there is a method by which genetics can influence biological abnormalities that lead to altered behavioral patterns. Kim, Kim, and Jeong performed research suggesting that there may be a connection between the brain matter volume changes seen in sch izophrenia and the duration and severity of the disease (2017). This research revealed the differences between brain matter volumes of schizophrenic and healthy participants that have become commonplace in the research examining this phenomenon. In this way the research adds evidence to support the idea of a connection between schizophrenia and the gray and white matter volume differences across certain regions of the brain. However, this study presents new evidence pointing to a relationship between the length and severity of the disease and the extent of these abnormalities in brain matter volume. Specifically, these researchers found that as a patient continues to suffer from the disease white matter volumes seem to reduce in regions of the brain. Th is means that it is likely for a schizophrenic brain to look increasingly different, or more abnormal, as time goes on. Although this may be a troubling thought for anyone sufferi ng from or attempting to treat the illness, there may be reason to believe in research as a means not only to identify such problems but as a means to identify potential solutions to the se problem s as well. Xiao et. al. conducted research examining the effects of the pharmaceutical options for treatment of schizophrenia on the str ucture of the brain (2008). The researchers produced a cohort of fetal mice known to have the genetic background of mice with schizophrenic features. This genetic

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Stabilizing Insanity %# background had been associated with the brain abnormalities shown in the articles previousl y mentioned. The researchers of this study wanted to evaluate the effects of several antipsychotic medications on the brain structure of these mice, so the placed the mice into several groups defined by which medication would be given. This created three groups of mice being given Quetiapine, Haloperidol, or Clozapine. Although each of these medications has been used to treat schizophrenia the results presented in this article suggest that Quetiapine has the largest overall effect. Not only is Quetiapin e known to control the symptoms of the disease, as does Haloperidol and Clozapine, it also showed signs of a capacity to increase neural progenitor cells in the presence of growth factors, it resulted in a greater volume of oligodendrocyte production, it s timulated myelination, and it even prevented breakdown of neural tissue by way of neural toxins that would typically result in cognitive impairments for these mice (Xiao et. al., 2008). It is difficult to make the transition from animal models to human pa rticipants, but based on these encouraging results it would seem that there is a case to be made for the benefits of Quetiapine treatment of schizophrenia. What is most significant is that it would seem that Quetiapine has the potential to have a restorat ive effect on the brain structure. In addition to Quetiapine, the use of Lithium, Carbamazepine, and Valproate in the treatment of bipolar disorder has shown a similar association to positive changes in brain structure as the behaviors of patients begin t o normalize (Germana et. al., 2010). This kind of research suggests that not only is there an association between the disease and a state of progressive deterioration in the brain there is also an association between treatment of the disease and a state o f restoration in the brain. When considering the role of neurological evidence of mental illness in the criminal justice system, these studies make a statement of the potential impact that could be had. There is a growing base of evidence suggestin g that there is a connection between diseased states and

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Stabilizing Insanity %$ brain structure, between the length and severity of the disease and its presenting structural abnormalities, and even between these brain structure abnormalities and the underlying behaviors. Most i mportantly, however, may be the research that suggests a positive, restorative effect of pharmaceutical treatment which could provide the criminal justice system with evidence of an offender's rehabilitation from a more objective source. Although there are difficulties presently clouding the evidence coming from neurological research on the genetic and biological correlates of mental illness there are indications that the future might bring more consistency to the findings of these studies. As the scien tific understanding of the biological and genetic factors influencing the presentation of mental illness grows the court system needs to be prepared to incorporate this form of evidence into cases that involve mental illness, especially when the insanity d efense is invoked Since the effects of treatment should be visible in the images produced from a scan of an individual's brain after treatment, it will be important for those who seek to treat individuals in the criminal justice system to incorporate evi dence from neurological imagery because it may provide evidence of a positive effect of the treatment methods The use of scientific evidenc e in the adjudication process can be a n effective way for the criminal justice system to come to more reasonable, e vident, and objective conclusions on a given defendant's sanity This would result in a stronger understanding of the impact of a mental impairment on an action and would result in fewer questions and debates over the accuracy of the finding Furthermore by incorporating the same scientific evidence found to support claims of an individual's rehabilitation after treatment there will be a more objective line of support that would lead to reassurance in the finding of an individual's successful progression to a more healthy state as a result of treatment.

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Stabilizing Insanity %% An Insanity Defense that Reflects Contemporary Society The current model for the processing of insanity defense claims is not an effective tool for processing cases in which mental impairment has played a role in the criminal action. When an insanity plea is presented it should not be an all or nothing affair. A suggestion of insanity is meant to state that mental illness was not only present during the behavior in question but also that this illness played a significant role in the creation of the behavior. However, the current model of insanity in the court room frequently presents a position signifying a belief that the concept of sane and insane is a dichotomy of a most disconnected variety even though the reality of the situation is quite different from what this view implies. The result of publicized cou rt cases involving the insanity defense have led the public to misunderstanding, frustration, and disappointment with the criminal justice system. The primary reason behind the public disillu sion with the process might be the lack of consistency across ju risdictions and the subjective nature of how each defendant is processed. Although there are some conventional elements used in each court case to evaluate the role of mental impairment, including things like psychological evaluations and jury deliberatio ns, the lack of a country wide, standardized method of processing creates disruption and dilemma for anyone attempting to understand why a certain outcome was found instead of another. The reaction of the pu blic to a finding of not guilty by reason of in sanity for many highly publicized court cases suggests that the people of the United States would almost always prefer to see a defendant found guilty. The criminal justice system is defined by the idea that the majority of people should be ca pable of con ducting themselves in a manner that is consistent with the law and should be held responsible for their criminal actions (Berman, 2007). This idea is perfectly revealed in the public outcry to the c ase of John Hinkley J r. who was found not

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Stabilizing Insanity %& guilty by reaso n of insanity under the Durham rule after an attempted assassination of then president Ronald Reagan ( Jacewicz, 2016). The Durham rule, at the time, was a sta ndard that took a more expansive look at the role of mental impairment in the production of crimi nal action by which an individual would be found not guilty by reason of insanity if the defense could show that the criminal act was the result of a mental disorder (Feuerstein et. al., 2005). The underlying message established by this standard, that men tal illness must be present and responsible for the production of the criminal act for insanity to be a valid finding, is sound. However, the public believed the Durham rule to be careless and unrestrictive because it allowed a man to escape responsibili ty for his crime under the pretense of a misunderstood mental impairment and as a result of this view, t he standards by which insanity wa s determined turned to a more strict and unified understanding (Jacewicz, 2016). This is the direction that the insanity defense should continue to go in the future. There is reason to believe that a shift towards a universal and regulated standard for processing insanity pleas will be needed sooner rather than later. There is no reason to wait and reac t to another misunderstood or less than prefer r ed verdict when the means to establish a more objective and consistent insanity defense process is possible now. Regardless of how a change in this process might look when a standardiz ed form of insanity defense processing is completed it will undoubtedly have elements that evaluate the nature of the mental impairment in order to understand how it would impact an individual's ability to comply with l egal and moral standards, and the pro cess will have the ability to be supported by the defense and refuted by the prosecution through the use of psychological and scientific evidence as to the role and severity of that mental impairment. Nevertheless, the American criminal justice system, in many situations,

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Stabilizing Insanity %' prefers a wait and react' approach that relies on doing things as normal until there is enough pushback from the public to make an alteration to the current paradigm. The problem with this approach is evident when one looks at the popu lation of individuals under the supervision of the criminal justice system within the United States. It can be clearly stated, after nothing more than a quick glance at the numbers, that the United States has a disproportionately large population of indiv iduals involved in the criminal justice system (Bureau of Justice Statistics, 2015). This problem has been becoming a bigger issue over the past several decades, but the most striking aspect of the problem is the number of these individuals who suffer fro m some form of mental illness (James & Glaze, 2006). Although there have been potential solutions proposed and potential solutions implemented as a reaction to the growing number of i ndividuals with mental illness being processed by the criminal justice s ystem the most effective solution to the problem has not yet been found or implemented T his could be due to the tendency of the public perception on mental illness to look overwhelmingly negative while lacking signs of a true understanding of the nature and influence of mental impairment. In many ways, it could be said that the general public does not understand how a mental illness can be responsible for a criminal action while the person who suffers from the illness can be found not responsible for the crime. However, in many cases, th e lines of responsibility for the criminal action are not so clearly drawn. M ental illness d oes not equal legal insanity and s imply because an individual has a mental impairment does not mean that they are immune to any impunity for their actions. This again calls into question the dichotomous relationship between sane and insane that the current form of the criminal justice so frequently supports. The criminal justice system has shown concern with the influences of me ntal illness on crime by establishing special processing and

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Stabilizing Insanity %( sentencing standards for those individuals showing signs of mental illness and a need for treatment (Burke et. al., 2012). Many jurisdictions have amended their legal processes to account for th e growing number of individuals that can and must be processed through a court system that will give them more treatment focused options than had been previously available (Wallace, 2017). It is important for the court to continue trending in this directi on by establishing a distinct, standardized process and sentencing structure for those inciting the insanity defense. The Folly in Findings: Accounting for Responsibility and Illness The biggest problem with the current form of insanity defense processing is the dichotomous nature of the finding. In most states, an individual under the insanity plea will either be found guilty or not guilty by reason of insanity. These are the only two opti ons available either sane or insane. Often times, however, the distinction between sanity and insanity are not so cl eanly cut. T he finding of guilty or not guilty by reason of insanity is not determined by a simple preponderance of empirical evide nce. T he finding of guilty or not guilty by reason of insanity is base d on a societal conception and a normative standard by which a judgment of criminal responsibility will be found ( Berman, 2007). However, the social concept of the morally responsible individual does not account for the societal understanding of a mental illness, the symptoms, or how the illness can influence actio ns. Although the people of the United States may always teach each other the values of accountability and the need to hold each other responsible for actions, the understanding of mental illness and how it can result in altered behavioral patterns will not remain the same. This means that a finding in any case could and would be found differently by a different group of jurors, in a different time period, or through a different interpretation of what constitutes mental illness.

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Stabilizing Insanity %) The problem presented by this fact is that the case cannot be tried again under a newly developed understanding or societal understanding This puts the insanity defense in a separate space from other cases. For example, the discovery of DNA evidence allowed past cases to be examined again with this new form of evidence being introduced and reviewed to show that the individual sentenced for the cri me was or was not the person at fault. This same process could occ ur with any new form of evidence that can be found through future research. The same cannot be said for a change in the socially based understanding of a concept, especially one as elaborate as the concept of mental illness. With the nature of insanity b eing a preponderance of evidence throu gh the lens of a normative standard suggesting the morally responsible individual coupled with the personal understanding of mental illness this is simply not possible. By promoting the use of the guilty but mentally ill verdict as a third option for insanity defense findings many of the current problems with the process can be addressed. The criminal justice system of the United States assumes that most individuals meet the criteria for being held responsible for th eir actions, meaning th at most individuals are sane, competent and are capable of constraining their actions to be within the rule of law (Berman, 2007 ). The GBMI verdict accounts for this by extending the ability of the courts to find those with mental illnesses responsible for their actions while simultaneously consenting to the idea that successful treatment for the disorder prior to the criminal act may have reduced the likelihood of the crime's occurrence. As such, this verdict will not only provide the public with the knowledge that the individual has been held responsible and punished for their illicit actions, they will also know that the individual has be en given access to appropriate rehabilitative programs that should help mitigate the issues t hat caused the criminal act resulting in a reduced likelihood of recurren t criminal action The ability of this verdict to provide punishment and treatment wil l also fulfill

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Stabilizing Insanity %* the goals of the criminal justice system of retribution, punishment, and society' s safety from this individual's criminal actions both now and in the future.

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Stabilizing Insanity &# Martin, J. P. (1998). The insanity defense: a cl oser look. The Washington Post Retrieved from http://www.washingtonpost.com/wp srv/local/longterm/aron/qa227.htm Mossire, A. & Maeder E. M. (2015). Defendant mental illness and juror decision making: A comparison of sample types. International Journal Of Law & Psychiatry 42, 4358 4366. doi:10.1016/j.ijlp.2015.08.008 Myers, D. (2014). Psychology in Modules (10th ed.). New York, NY: Wor th. Nery, F. G., Monkul, E. S., & Lafer, B. (2013). Gray matter abnormalities as brain structural vulnerability factors for bipolar disorder: A review of neuroimaging studies of individuals at high genetic risk for bipolar disorder. Australian & New Zealan d Journal Of Psychiatry 47(12), 1124 1135. doi:10.1177/0004867413496482 Noriomi, K., Hiroko, K., Miho, O., Masanori, I., Hiroshi, K., Noriko, S., Naotsugu, H., & Toshio, O. (2017). Brain structure differences among male schizophrenic patients with history of serious violent acts: an MRI voxel based morphometric study. BMC Psychiatry 171 11. doi:10.1186/s12888 017 1263 9 Parzen, M. D. (2003). Toward a culture bound syndrome based insanity defense?. Culture, Medicine & Psychiatry 27(2), 131. Pridmore, S., Chambers, A., & McArthur, M. (2005). Neuroimaging in psychopathy. Australian & New Zealand Journal Of Psychiatry 39(10), 856 865. doi:10.1111/j.1440 1614.2005.01679.x Ringer, L. D., & McCormack, J. C. (1977). The Elusive Insanity Defense. American Bar Ass ociation Journal 63(12), 1721 1724. Schouten, R. (2012) The insanity defense. Psychology Today Retrieved from https://www.psychologytoday.com/blog/almost psychopath/201208/the insanity defense

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Stabilizing Insanity &% Wallace, A. (2017) Persons with mental illness in the criminal justice system Colorado's response. Legislative Council Staff Publication, 17(4). Retrieved from https://leg.colorado.gov/sites/default/files/ib_17 04_persons_w_mental_illness_colorados_response_updated.pdf White, M. D., (Eds.). (2017). The insanity defense: multidisciplinary views on its history, trends, and controversies Santa Barbara, CA: Praeger Publishing. Xiao, L., Xu, H., Zhang, Y., Wei, Z., He, J., Jiang, W., Li, X., Dyck, L. E., Devon, R. M., Deng, Y., & Li, X. M. (2008). Quetiapine facilitates oligodendrocyte development an d prevents mice from myelin breakdown and behavioral changes. Molecular Psychiatry 13(7), 697 708. doi:10.1038/sj.mp.4002064 Yoong, G. (2012). Top 10 most notorious insanity defense cases. Listverse.com Retrieved from http://listverse.com/2012/04/11/top 10 most notorious insanity defense cases/