Issue Date: December 28, 2009

The Mentally Ill in the Legal System

Since ICOF last covered the mentally ill in the legal system in April 2002, the Supreme Court issued decisions on the use of the insanity defense, the constitutionality of the forced medication of mentally ill defendants, and the right of a mentally ill defendant to defend himself at trial. Click here for the latest developments concerning this controversial issue.


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Activists protest the use of the death penalty for the mentally ill outside the Harris County Courthouse in Houston, Texas, while Andrea Yates, who suffered from post-partum psychosis is tried inside for murdering her five children. Receiving a flyer is Yates' mother, Jutta Karin Kennedy.

The vast majority of people with a mental illness, like clinical depression or schizophrenia, go about their lives without ever breaking the law or endangering others. While some people with mental illnesses do commit crimes, experts say that the notion that mentally ill people are running amok in the streets is a fallacy.

Many people who suffer from a mental illness are able, through medications and therapy, to live normal, productive lives. They are able to overcome personal limitations and societal biases to become successful in many fields. For example, John Nash, the subject of the 2002 Academy Award-winning film A Beautiful Mind, won a Nobel Prize in economics despite a lifelong battle with schizophrenia.

But for others, particularly those who do not have a support network of family, friends and doctors, mental illness can be a crippling affliction that may lead to a life of hardship. Homelessness and even criminal activity are sometimes unavoidable for those with a mental illness and nowhere to turn for help.

When those with a mental illness do commit a crime and enter the criminal justice system, the authorities are confronted with a dilemma. Should the focus be on punishment for the crime committed, or should it be on treatment?

This matter was thrust into the public eye most recently in the case of Andrea Yates, a 36-year-old Texas woman who drowned her five children in a bathtub in June 2001. During her trial it was brought out that she suffered from postpartum psychosis, a severe form of postpartum depression characterized by delusions that a new baby is evil. Yates faced capital charges in the case and many said that, if found guilty, she should have been executed. Others, however, said that her illness was a mitigating factor in the case and her life should be spared.

The debate about how to deal with the mentally ill in the criminal justice system has become centered on two issues. First, should the mentally ill be subjected to the death penalty if found guilty of a capital crime? And second, should the courts be allowed to forcefully medicate a mentally ill inmate during a trial?

The U.S. Supreme Court has weighed in on those issues, but the court's rulings have not completely closed the door on the discussion. In the matter of executing the mentally ill, the court has said that to do so would violate the Eighth Amendment's ban on cruel and unusual punishment. As for forcefully medicating a mentally ill defendant, the court has ruled that to do so would violate the due process clause of the 14th Amendment, which says that states may not "deprive any person of life, liberty or property without the due process of law."

But in each case, the court did not definitively answer the question at hand. In the death penalty case, the court never defined insanity. And in the forced medication case, the court said that the state may forcefully medicate if it can prove an overriding medical interest is being served by doing so. Analysts say that the loose ends in the court's opinions in those cases are as important as the decisions themselves. For example, since the court did not define insanity, what exactly constitutes insanity is still open to discussion.

Some argue that the most important factor in the nation's criminal justice system is accountability. It is vital, they say, for people to be held responsible for their actions and punished for breaking the law, even if they have a mental illness. There are some people, they concede, who simply do not know what they are doing at the time they commit a crime. Those people should be treated differently than regular offenders, they say. But those who have a clear sense of what they have done should be treated the same as other offenders in spite of their mental illness, they say.

However, others argue that to try and convict a person of a crime when that person is mentally ill is unacceptable. It is absurd to think that a documented mental illness is not a factor when a sufferer commits a crime, they say, and putting a mentally ill offender to death is unconscionable. Instead, they assert, mentally ill people should receive compassion and counseling.

Should mentally ill people who commit crimes be dealt with like any other criminals? Or should they be given mandatory treatment rather than sent to prison?

The History of the Mentally Ill in The Criminal Justice System

Experts say that throughout history, the criminal justice system has treated the mentally ill both protectively and punitively. The general pattern, experts say, is for the pendulum to swing slowly toward leniency until a mentally ill individual commits a notorious criminal act, like an assassination attempt, after which the laws are tightened again.


Jeremy Eagle

The first major case that influenced American jurisprudence with regard to the mentally ill was the 1841 murder of the secretary of British Prime Minister Robert Peel. A British jury found the defendant, Daniel M'Naughten, not guilty by reason of insanity. This led to the adoption of the "M'Naughten Rules," which said that a person could be found not guilty by reason of insanity if he or she was unable to distinguish the difference between right and wrong at the time of the crime. The rules were adopted as the legal standard in U.S. courts as well.

The rules were loosened in the U.S. in 1886, when the Alabama Supreme Court ruled that defendants could be relieved of culpability for a crime if they could not control their behavior, even if they knew the act was wrong. That ruling was adjusted later after the American Law Institute (ALI) proposed a two-part standard for determining insanity.

The ALI standard, called the Moral Penal Code, says that a person is "not responsible for criminal conduct if, at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law." In other words, the code says that either an inability to distinguish right from wrong or an inability to resist urges brought on by the mental illness were grounds for an insanity defense.

By the 1970s, most states had accepted the ALI rule. However, that changed when John Hinckley tried to assassinate President Ronald Reagan (R, 1981-89) in March 1981, in order to impress actress Jodie Foster, with whom he was obsessed. Prior to Hinckley, most people viewed the insanity defense with equanimity, experts say. But after Hinckley was acquitted--because he was schizophrenic--many people hardened their attitude toward the insanity defense.

The not guilty verdict created an outcry because many people said that Hinckley should have been dealt with more harshly. They said that a man who shoots the president--and there was no question that Hinckley had pulled the trigger--should go to jail, not a mental hospital.

In response to the outcry after Hinckley's acquittal, Reagan, who had been shot in the lung in the assassination attempt, called for stricter laws regarding the insanity defense. He sent legislation to Congress that he said would "simplify the justice system and make it more likely that those who commit crimes pay a price."

Congress in 1984 passed the Insanity Defense Reform Act, making it more difficult for defendants to use the insanity defense. The act rewrote the law governing the use of the insanity defense and changed the standard for determining sanity to whether the defendant knew what he or she was doing at the time of the crime and if there was any intent to commit the crime.

The American Psychiatric Association (APA) joined the debate in early 1983, when it called for a tightening of the rules governing the application of the insanity defense. The APA said that only people who are "psychotic," as opposed to those with "antisocial personality disorders," should be allowed to plead insanity. The difference, the group said, is that psychotics are "unable to appreciate the wrongfulness" of their conduct, and therefore cannot be held responsible for their conduct in the same way that a nonpsychotic person can.

At present, each state sets its own guidelines for determining if a defendant is competent to stand trial. Some states continue to use the more relaxed rules put forth by the ALI. But others, notably Texas, have much more restrictive policies that place the burden of proving insanity on the defense.

Like others who have been found not guilty by reason of insanity, Hinckley was not freed, but was sent to a secure mental heath facility. He remains institutionalized today, though he has been allowed to take supervised excursions from St. Elizabeth's Mental Hospital outside Washington, D.C., where he has been held since his acquittal.

Court Considers the Insane and The Death Penalty

The Supreme Court decided the question of whether the mentally ill should be executed, in part at least, in June 1986 in a case called Ford v. Wainwright. The case began 12 years earlier, when Alvin Ford was convicted of murder and sentenced to die.

At the time of his conviction, there was no evidence of mental illness, according to reports, but once on death row in Florida, Ford developed an increasingly complex and disconnected set of delusions. Ford's attorney asked Jamal Amin, a psychiatrist who had previously examined Ford, to reexamine the prisoner. Based on evaluations, interviews with Ford's acquaintances and letters that Ford wrote, Amin determined that Ford had "a severe, uncontrollable, mental disease which closely resembles 'Paranoid Schizophrenia With Suicide Potential.' " Amin went on to say that the disease was "severe enough to substantially affect Mr. Ford's present ability to assist in the defense of his life."


Jeremy Eagle

Ford then refused to see Amin again, believing that he had joined a conspiracy against him, and another doctor, Harold Kaufman, was brought in. Kaufman determined that Ford did not understand why he was to be executed and made no connection between the murder he had committed and his impending death.

Ford's attorney then sought a competency hearing. A three-psychiatrist panel was appointed by the governor in keeping with Florida law. After the three interviewed Ford together for a half hour, each came up with a different diagnosis, but all three agreed that he was competent enough to be executed. In Florida, the governor makes the final decision in cases like Ford's, and on April 30, 1984, then-Gov. Bob Graham (D), without explanation, signed a death warrant for Ford.

Ford's counsel filed motions in successively higher courts, finally petitioning the Supreme Court, which agreed to hear the case. The court held that the Eighth Amendment made executing the insane unconstitutional. Since Florida law dictates that the prisoner is not allowed to challenge the findings of the state's doctors and the person charged with signing the death warrant--the governor--has final authority in the matter, the court said that Florida's statutes violated the due process clause of the Fifth Amendment and thus were unconstitutional.

Absent from the Supreme Court's ruling, however, was any definition of insanity. Analysts say that although the court ruled that the insane may not be executed, the lack of a definition of insanity means that someone judged to be insane in one state may be ruled competent in another. Therefore, someone spared in one state may be executed in another. Although the court's ruling in Ford did not put to rest the question of executing the mentally ill, no other cases have gone before the court that would allow the body to clear up the vagueness of the ruling.

Forced Administration of Medication Debated

Seventeen months after the decision in Ford, the Supreme Court ruled on a case that further defined how the mentally ill were to be treated in the criminal justice system. In that case, Riggins v. Nevada, the court dealt with the question of whether a prisoner could be forcefully medicated.

In late 1987, David Riggins was arrested for the murder of Paul Wade, who had been found dead in Las Vegas, Nev. with stab wounds to his head, chest and back. A few days after his arrest, Riggins told R. Edward Quass, a psychiatrist who treated patients at the Clark County (Nev.) Jail, that he was hearing voices in his head. Quass prescribed Mellaril, an antipsychotic drug from which Riggins had previously benefitted.

Riggins continued to take the medication through the time when three psychiatrists examined him in order to determine competency. Two of the three said he was competent, and a trial date was set. But before the trial, Riggins's counsel moved for a court order to allow Riggins to stop taking the drug.

The defense argued that the 14th Amendment guarantee of due process meant that forced medication was unconstitutional because such medication would affect Riggins's demeanor during the trial. The state countered that it had a right to compel a defendant to take medication because the state constitution prohibited trying incompetent people. In order to ensure his competence, the state argued, it could compel him to take the medication.

The state prevailed, and during his trial Riggins continued taking the medication. Riggins testified on his own behalf that he had killed Wade, but said that he was high on cocaine at the time and voices in his head told him that killing Wade was justifiable. A jury found Riggins guilty and sentenced him to death.

The Nevada Supreme Court upheld the conviction and the sentence, saying that the expert testimony of psychiatrists at the trial "was sufficient to inform the jury of the effect of the Mellaril on Riggins's demeanor and testimony." The case then wound its way up to the U.S. Supreme Court.

The Supreme Court relied partially on an earlier decision, Washington v. Harper (1990), in which it had said, "The forcible injection of medication into a nonconsenting person's body represents a substantial interference with that person's liberty." But because prison is a special situation, the court had ruled in Washington that forced medication is a permissible action if the prisoner, unmedicated, was a danger to himself or others.

But in the Riggins case, the court said that he was not a danger and, therefore, should have been allowed to stop taking medication during his trial. Accordingly, the court reversed the conviction and remanded the case to a lower court.

In deciding the Riggins case, the Supreme Court did not, however, say that the right of a defendant to refuse medication is absolute. If medication is the most appropriate and least intrusive means of achieving competency for a trial, the court said, then forced medication is permissible.

Much like in the case of executing the mentally ill, the forced administration of medication remains a somewhat open question. Since Riggin, no case has gone before the Supreme Court on the matter.

Recent Cases Present Challenges

Two recent cases involving mentally ill defendants have garnered nationwide headlines and have forced people to reexamine their thoughts about the mentally ill in the criminal justice system. The first case goes back to July 1998, when Russell Weston killed two police officers in the Capitol Building in Washington, D.C. Weston, a paranoid schizophrenic, was shot three times before being arrested.

A judge ordered Weston to receive treatment at a mental hospital with the goal of making him competent to stand trial. But Weston refused to take the antipsychotic medication that doctors said he needed. His lawyers stepped in and prevented any medication from being administered to him, and a long standoff ensued.

Complicating the matter is the fact that Weston could face the death penalty if he is convicted. And since there is no question that he did indeed shoot two police officers, many feel that he would surely be convicted if tried.

"This is of profound ethical significance to psychiatrists," says Richard Bonnie, director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia. "No one ever thought it was a problem forcing a sick person found incompetent for trial to take medication, but the death penalty has a way of taking latent, routine issues and making them ethically anguishing."

Weston's attorneys say that to medicate him and make him able to stand trial is tantamount to leading him to the death chamber. They say that they will advise their client to take the medication if the U.S. attorney's office removes the threat of the death penalty. Analysts say that is unlikely to happen because of the nature of the crime.

The government argues that the Riggins decision precludes it from trying an incompetent person, so Weston must be made competent in order to stand trial. The only way to do that, officials say, is through medication.

Some observers agree that Weston should be medicated because to allow him to live without medication, they say, is a form of torture. "Keeping him in a florid [fully developed] psychotic condition, leaving him as a stark raving madman is not good," says Arthur Caplan, director of the center for Bioethics at the University of Pennsylvania. "It's keeping him alive, but the cost is absurd."

Weston remains locked in isolation in the psychiatric unit of a federal prison in North Carolina. His lawyers and the prosecutors have both been unyielding in pursuing what both sides say is the proper course of action in the case.

The second recent highly publicized case was that of Andrea Yates. And, as in past cases, the possibility of the death penalty loomed over the proceedings. Yates had been diagnosed with postpartum psychosis, a severe form of postpartum depression. While anywhere from 10% to 15% of all new mothers will experience postpartum depression, usually characterized by feelings of hopelessness, despair and an inability to experience pleasure, only one in 1,000 women experience postpartum psychosis, according to psychiatrist Sally Satel. When a woman suffers from postpartum psychosis, Satel says, she may feel that her new child is evil or, somewhat conversely, that killing the child may save the baby from having to live in a hell on earth.

Yates was on antipsychotic medication for her illness, but she stopped taking the drugs about two weeks before the murders. In 1999, she had attempted suicide twice and shortly before the murders again reported suicidal feelings. Yates had been hospitalized for mental illness on several occasions.

In the Yates case, the question of whether it is acceptable to execute the mentally ill was complicated by the fact that the defendant was a mother accused of killing her own children, analysts say. But, despite the Supreme Court's ruling in Ford, the central issue--of whether a person who is diagnosed as mentally ill and has a history of suicide attempts and hospitalizations for mental illness can be put to death--remained because the killings took place in Texas, which has strict guidelines for dealing with insanity pleas.

Yates was convicted of murder by a jury, but avoided a death sentence. Instead of sentencing her to death, the jury opted for life in prison, with the opportunity for parole in 40 years, when Yates will be 77 years old.

Strict Competency Standards Urged

Many people are of the opinion that those who commit crimes should be punished for those crimes, even if the perpetrator is mentally ill. If courts and prosecutors let people off by sentencing them to stints in mental hospitals, they will be sending the message that you can get away with murder, supporters of tough standards say.

They do not deny that there are some individuals who are so sick that it is inhumane to do anything other than keep them in a mental institution to receive treatment. But those people are the exception, not the rule, they say. For most who have a mental illness, competency can be achieved through medication and a trial should follow, supporters of stricter standards argue.

The best way to ensure that only the truly insane are acquitted by reason of insanity is to maintain a strict definition of insanity, supporters say. Otherwise, practically anyone who commits a heinous act could be thought of as insane. "Committing an act of murder is a major criteria for anti-social personality," says Oklahoma State Attorney General Drew Edmondson. "There's something wrong--either episodic or permanent--to where you are unable to exercise the self-restraint that society demands from the rest of us."

The Yates case served as a galvanizing force for those on both sides of the debate. For supporters of stringent competency rules, Yates became an emblem of why those rules need to be strict. Even making allowances for her mental illness, many people called for Yates to be executed because her crimes were so ghastly. "Five children are dead. Could that possibly be the travesty here?" asks National Review Online executive editor Kathryn Lopez. "Could the woman who killed them getting off possibly be even more of one?"

In addition to the nature of Yates's crimes, her seeming competence during and after their commission led many to believe that she should be executed. She waited until her husband was out of the house before killing her five children, and then phoned police and confessed to the crime. "In Yates's case it seems clear that she knew exactly what she wanted to do, she did it very methodically, she knew she had done wrong, which is why she called the authorities to confess," says Dave Shiflett of the conservative National Review. "In my book that should be enough to get one hanged with a wet rope."

Supporters of strict insanity laws also say that forcing a defendant to take medication in order to make that person competent to stand trial is acceptable. They contend that only the sickest should be allowed to plead insanity, so those that can be medicated should be. In fact, some say that not forcing medication on a sick defendant is worse than the possibility of a death sentence because it means a life of agony.

"By putting their client's legal best interest ahead of his optimal medical interest, the lawyers are effectively sacrificing Weston's sanity to save his life," says Satel of the attorneys who have kept Weston, who killed two Capitol police officers, from receiving treatment. "If he wins his legal appeal and avoids medication, he escapes a deadly prosecution, but is sentenced to years of psychic torment--perhaps a lifetime of torment."

Critics Say Humane Treatment Needed

To put mentally ill people on trial for something they did while in the grip of their disease is unacceptable, critics say. They argue that the rules for dealing with a mentally ill defendant must be different than the rules for dealing with a normal defendant. And the idea of executing someone who is mentally ill, they say, is utterly inhumane.

In the case of Yates, critics of strict insanity laws found a perfect example of what they say is the unjust way that mentally ill people are treated in the criminal justice system. Texas uses a competency test similar to the M'Naughten rule of over 150 years ago. A defendant must not have the ability to distinguish right from wrong in order to be considered insane--and the burden of proof is on the defense.

Critics, including Charles Krauthammer, a columnist and former psychiatrist, say that such a system reflects a fundamental misunderstanding of what mental illness is and how it affects people. Krauthammer says that Yates knew that her action was illegal, as evidenced by her phone call to the police after the murders. But, he says, Yates's psychosis caused her to think that killing her children was the right thing to do. Critics say that in this type of case--where a defendant's sense of right and wrong is completely skewed--the defendant cannot be held to the same standard as a sane person.

Krauthammer answers critics who say that every person who kills must be at least a little crazy, and should therefore attempt to use the insanity defense, when he writes:

Andrea Yates was clearly mentally deranged, not as proved by the murders--that would make the murders self-acquitting--but as demonstrated by her noncriminal behavior: self-injury, severe withdrawal, bizarre behavior, occasional catatonia, delusion, hallucinations.

Critics say that it is competency laws like the one in Texas that must be changed in order for mentally ill defendants to receive a fair trial and have a chance at getting treatment and forging a meaningful life.

As for forcefully medicating defendants, critics say they wonder what the point is, particularly where the death penalty is concerned. It seems odd, they say, to be concerned enough to make someone medically competent only so that they can be executed. "What is the social gain of going through the horrendous effort to treat them medically so you can kill them?" asks Richard Bonnie, the director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia.

Debate Continues

Some people say that those who commit crimes must be held accountable for their actions. Special consideration can be given to those with a mental illness, they say, but the standards for determining whether a defendant is competent should be very strict. However, others feel that the current standard used by many states to determine competency is too narrow and should be broadened.

The Supreme Court has decided several cases dealing with the treatment of mentally ill defendants. But the rulings have not definitively resolved the issue. The decisions leave room for interpretation by prosecutors and judges, analysts say.

Experts say that the question of how to treat the mentally ill in the criminal justice system is important. They point to a Justice Department study from 1999 that estimates the number of mentally ill prisoners to be about 16% of the total prison population. But, analysts say, fair treatment of the mentally ill is often overshadowed by opposition to the use of the insanity defense, which some claim is abused as a way to get away with crimes. According to reports, however, the insanity defense is used in less than 1% of all criminal trials. And, experts agree, it succeeds in only about one-quarter of those cases.

Some also say that those found not guilty by reason of insanity get off easier than those who go to prison because the mentally ill are sent to hospitals and institutions. But again, many experts say, that is a fallacy. According to James Hooper and Alix McLearen, who are both mental health workers, defendants found to be insane "spend as much, or more, time in state custody than their criminally convicted counterparts."

Analysts say that, unless the Weston case reaches the Supreme Court, there are no cases at the moment that could significantly contribute to the procedures for dealing with the mentally ill in the criminal justice system. But there are many voices, particularly in the wake of the Yates trial, calling for a return to more lenient rules for determining competency.


Bacharach, Phil. "By Reason of Insanity." Oklahoma Gazette (April 1, 1998): <>.

Bard, Jennifer. "Unjust Rules for Insanity." New York Times (March 13, 2002): <>.

Holmes, Amy. "Mom Who Killed Her Kids Wasn't a Victim." USA Today (June 28, 2001): <>.

Hooper, James. "Does the Insanity Defense Have a Legitimate Role?" Psychiatric Times (April 2002): <>.

Hull, Anne. "A Living Hell or a Life Saved?" Washington Post (January 23, 2001): A1.

Krauthammer, Charles. "Not Guilty, Insane." Washington Post (March 15, 2002): A23.

Lithwick, Dahlia. "Does the Law Treat the Insane Differently Than the Retarded?" (June 27, 2001): <>.

Satel, Sally. "Crazed and Confused." (August 30, 2001): <>.

Shiflett, Dave. "Death Therapy." National Review Online(March 20, 2002): <>.

Torrey, E. Fuller. "Let's Stop Being Nutty About the Mentally Ill." City Journal (Summer 1997): <>.

Additional Sources

Additional information about the mentally ill and the criminal justice system can be found in the following sources:

Low, Peter, Jeffries, John and Bonnie, Richard. Trial of John W. Hinckley Jr.: A Case Study in the Insanity Defense. New York, N.Y.: Foundation Press, Inc., 1999.

Torrey, E. Fuller et al (eds). Criminalizing the Seriously Mentally Ill: The Abuse of Jails as Mental Hospitals. Collingdale, Pa.: DIANE Publishing Company, 1992.

Contact Information

Information on how to contact organizations that are either mentioned in the discussion of the mentally ill in the criminal justice system or can provide additional information on the subject is listed below:

National Alliance for the Mentally Ill
Colonial Place Three
2107 Wilson Blvd. Suite 300
Alexandria, Va. 22201
Telephone: (703) 524-7600

National Mental Health Association
1021 Prince St.
Alexandria, Va. 22314
Telephone: (703) 684-7722

Key Words and Points

For further information about the ongoing debate over the mentally ill in the criminal justice system, search for the following words and terms in electronic databases and other publications:

Andrea Yates
Riggins v. Nevada
John Hinckley
Ford v. Wainwright
Russell Weston

The Mentally Ill in the Legal System Update (December 2009)


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